European conflict is the status of the armed merchantman. But this is not a new question. The question has not now come to the front for the first time. It has recurred in nearly every succeeding war for centuries, been discussed in the halls of legislative bodies and conventions, and demanded solution by the courts.

Back in the seventeenth century, King Charles issued an edict compelling the arming of all merchantmen. Such was deemed necessary both in peace and war to protect vessels against pirates and privateers. Even as late as 1815, John Marshall said: "In point of fact, it is believed that a belligerent merchant vessel rarely sails unarmed." With the decrease in piracy and the abolition of privateers by the Declaration of Paris, the reason for arming largely disappeared. But the question persisted in another form, namely the conversion of merchant vessels into war cruisers in time of war. The immense growth of the mercantile marine of countries with divergent interests could not but bring about renewed consideration of the matter. As long ago as 1888, Prof. Snow, in his book on International Law, said: "It may be reasonably expected in coming naval wars that steamers of the great mail lines will be armed so as to defend themselves from attack." The question received great discussion at the Second Hague Conference and failed of settlement largely because of difference of opinion as to the legality of converting merchantmen into cruisers on the high seas before return to their home ports. Owing to the question thus hanging fire, England frankly announced her position through her First Lord of the Admiralty in the House of Commons in 1913. Mr. Churchill said. that several great mercantile powers having reserved the right to convert their merchant vessels into cruisers even on the high seas, British commerce would be endangered so greatly that in self-defence, England would arm her merchantmen at the expense of the government. He added that such ships would be instructed simply to ward off attacks of other converted merchant cruisers,

thus intending the armament solely for defense.

The subject was also receiving attention at almost this very time from the Institute of International Law holding a convention at Oxford. Here the German professors and authorities were practically alone in denying the right of merchantmen to arm even for defence. The attitude of Germany toward such armed merchantmen admittedly was to subject their crews to the criminal law of the nation of the capturing vessel, thus treating the crew as murderers rather than as prisoners of war. That such is contrary to the practice of the United States is seen from our Naval Code (1900). That states that the merchant vessels of the enemy may resist attack and their crews are entitled to the rights of prisoners of war if captured.

In this connection, the case of "The Nereide," decided by our greatest jurist, John Marshall, in 1815, becomes of great

interest. That case arose over the title to the cargo of a prize ship, The Nereide, captured after a fifteen minute engagement by an American privateer. The ship was sailing under the British flag but the cargo was for the most part owned by a neutral, a native of South America. The vessel was heavily armed, but that fact the court held did not create an exception to the wellsettled rule that the property of a friend was not subject to condemnation even when found in a hostile vessel. Most of the opinion is apt in the present crisis.. To quote a part,

"That a neutral may lawfully put his goods on board a belligerent ship for conveyance on the ocean is universally recognized as the original rule of the law of nations. It is founded on the plain and simple principle that the property of a friend remains his property wherever it may be found. . . . It is deemed of much importance that the rule universally laid down in terms which comprehend an armed as well as an unarmed vessel and that armed vessels have never been excepted from it. . . . It would be strange if a rule laid down with a view to war in such broad

terms as to have universal application should be so construed as to exclude from its operation almost every case for which it purports to provide and yet that not a dictum should be found in the books pointing to such construction. The antiquity of the rule is certainly not unworthy of consideration. It is to be traced back to the time when almost every merchantman was in a condition for self-defence. . . . The object of the neutral is the transportation of his goods. His connection with the vessel which transports them is the same whether the vessel is armed or unarmed. The act of arming is not his-it is the act of a party who has a right so to do. . .

"It is difficult to see in this argument anything which does not also apply to an unarmed vessel. In both instances it is the right and the duty of the carrier to avoid capture and prevent a search. There is no difference except in the degree of capacity to carry this duty into effect. The argument would operate against the rule which permits the neutral merchant to employ a belligerent vessel without imparting to his goods the belligerent character.

"The argument respecting resistance stands on the same ground with that which respects arming. Both are lawful."

Care is necessary not to confuse belligerent with neutral vessels. A neutral vessel is under an obligation to submit to a search. Not so with a belligerent. She being liable to capture has a duty to escape if possible. Her status is open and declared. But the character of the vessel is not to be imputed to its cargo. To hold otherwise is to controvert the universally recognized rule above quoted and treat the goods of the neutral as those of the enemy. If that be the practice, the neutral will suffer virtually all the liabilities of the enemy without the correlative right to defend his property. The burdens of neutrality are then apt to be greater than those of avowed belligerents. If smitten on one cheek he can only turn the other cheek for similar treatment. If such becomes the situation of neutrals, it is not to be expected that they will long remain such.

HARRISON J. CONANT.

Montpelier, Vermont.

THE CUMMINS ACT-VALIDITY OF CONTRACTUAL PROVISIONS NOT ATTEMPTING TO EXEMPT CARRIER FROM LIABILITY FOR NEGLIGENCE NOR TO LIMIT RECOVERY WHERE CARRIER IS LIABLE.

The so-called "Cummins Act" is as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That so much of section seven of an Act entitled "An Act to amend an Act entitled 'An Act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, and all Acts amendatory thereof, and to enlarge the powers of the Interstate Commerce Commission," approved June twentyninth, nineteen hundred and six, as reads as follows, to-wit:

"That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or a bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law," be, and the same is hereby, amended so as to read as follows, to-wit:

"That any common carrier, railroad, or transportation company subject to the provisions of this Act receiving property for transportation from a point in one state or territory or the District of Columbia to a point in another state, territory, District of Columbia, or from any point in the United States to a point in an adjacent foreign country shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the

ants. 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 exemption against the negligence of the carrier or his servants."

And, on page 511:

"The statutory liability, aside from responsibility for the default of a connecting carrier in the route, is not beyond the liability imposed by the common law as that body of law applicable to carriers has been interpreted by this court as well as many courts of the states."

At the conclusion of its opinion the court declared (p. 512):

"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."

A reading of the opinion shows that the court construed the Carmack Amendment as declaring the situation at common law: i. e., a carrier under the statute, as at common law, is liable as an insurer unless it limits such liability by contract, but that such limitation would be void if unreasonable or an attempted exemption from liability for negligence. Under this view, it was not considered that a carrier sought to exempt itself from the liability imposed by the statute, if the contractual limitation be such as would be valid at common law ["as declared by this court (the Supreme Court) and enforced in the Federal courts throughout the United States"-see p. 504].

This view of the matter was reiterated in Missouri, Kansas & Texas Ry. Co. v. Harriman.2 At page 672 the court said: "The liability imposed by the statute is the liability imposed by the common law upon a common carrier, and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable, and does not exempt from loss or responsibility due to negligence."

The language "and no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed" does not therefore forbid limitations or ex

(2) 227 U. S. 657.

emptions which were valid at common law, since such limitations or exemptions would not conflict with the liability "imposed" by the statute. Does the Cummins Act strike down contractual limitations of liability (other than as to amount) which are valid under the old Carmack Amendment?

The Cummins Act adds the words underscored in the following quotation:

"No contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed."

Further on, the Act provides that the carrier shall be liable "for the full actual loss, damage, or injury to such property carried by it or by any such common carrier * * * to which such property may be delivered," etc., "notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in, which it is sought to be made is hereby declared to be unlawful and void."

It will be noted that the liability imposed is for loss or damage caused by the carrier just as under the old law, and we have noted the emphasis placed by the Supreme Court in the Croninger case (p. 506) upon the phrase "caused by." It is perfectly clear that the Cummins Act does not make the carrier liable for loss or damage caused by act of God or the public enemy, but the question is, Does the new language render void contractual limitations and exemptions which were valid at common law and under the original Carmack Amendment? If so, this construction can only be reached by reasoning that the language "or other limitation of any character whatsoever" and “notwithstanding any limitation of liability (or limitation of amount of recovery)" broadens the liability "imposed" by the act. But the words "caused by" and