soning of the Supreme Court of the District of Columbia in Galt v. Adams Express Co., supra, and adds, "While the provision in a bill of lading or contract between the shipper and the carrier, that the latter will not be liable beyond a certain sum expressed in the contract, may be valid to limit the liability of the carrier as an insurer, a condition of this character which seeks to cover the negligence of the carrier is void."

In Kentucky, the same rule has been followed: Orndorff v. Adams Express Co. (1867), 3 Bush. (Ky.)

194.

[In Little et al v. Boston & Maine RR. (1876), 66 Me. 239, the Court say: "When the article is of an extraordinary or unusual value the carrier would well be entitled to a higher rate of compensation, inasmuch as he might be reasonably held to a greater degree of care. * * It seems that common carriers may limit their liability by notice brought home to the owner of goods before, or at the time of their delivery, and expressly or impliedly assented to by him."

[The case Brehme v. Adams Express Co. (1866), 25 Md. 328, shows that in that State a carrier may by special contract limit the amount of his liability, for there the Court said, "The receipt executed by the appellee [the company] and accepted by the appellant, constituted the contract between the parties and both upon reason and authority, they are bound by its terms. The contents and value of the parcel were not disclosed to the appellee, and it was expressly agreed that its value was fifty dollars. Like in a valued policy of insurance, to which the

contract in question is analogous, the amount of risk assumed by the appellee was fixed by the agreement, and must, in case of loss, be the measure of the appellant's recovery."

In Massachusetts, the rule is in direct accordance with that established by the United States Supreme Court: Squire v. New York Central RR. Co. (1867), 98 Mass. 239; Graves v. Lake Shore & M. S. RR. Co. (1884), 137 Id. 33. In the latter case the Court (MORTON, C. J.) say: "The plaintiffs voluntarily entered into the contract with the defendant; no advantage was taken of them; they deliberately represented the value of the goods [high wines] to be $20 per barrel. The compensation for carriage was fixed upon this value; the defendant is injured and the plaintiffs are benefited by this valuation, if it can now be denied. The plaintiffs cannot recover a larger sum without violating their own agreement. Although one of the indirect effects of such a contract is to limit the extent of the responsibility of the carrier for the negligence of his servants, this was not the purpose of the contract. We cannot see that any considerations of a sound public policy require that such contracts should be held invalid, or that a person who in such contract fixes a value upon his goods which he entrusts to the carrier, should not be bound by his valuation." These cases were expressly affirmed in Hill v. Boston, H. T. & W. RR. Co. (1887), 144 Mass. 284.

[In Michigan, the Revised Statutes (ed. 1882, pages 843, 879), provide: "3328, Any railroad company organized under this act, receiving freight for transportation, shall be entitled to the rights and

be subject to the liabilities of common carriers, except as herein otherwise provided; but no company shall be suffered to lessen or abridge its common law liability as a common carrier, unless by an agreement to be signed by both parties thereto."

"3418. That no railroad company shall be permitted to change its common law liability as a common carrier, by any contract, or in any other manner, except by a written contract, none of which shail be printed, which shall be signed by the owner or shipper of the goods or property to be carried." This last provision is contained in ch. 92, of Howell's Annotated Statutes (ed. 1882, page 879), and from its heading would seem to apply to Railroad Companies in general, and not like the previous section to those organized under the Statute therein referred to. The section is headed "Liability of Railroad Companies as Common Carriers."

The Minnesota Supreme Court is apparently in accord with the principal case, intimating, however, that an agreement made in good faith to liquidate the damages recoverable in case of loss through the carrier's negligence, would be enforced. In Moulton v. St. Paul, M. & M. Ry. Co. (1883), 31 Minn. 85, that Court said: "The same reasons which forbid that a common carrier should, even by express contract, be absolved from liability for his own negligence, stand also in the way of any arbitrary preadjustment of the measure of damages, where the carrier is partially relieved from such liability. It would indeed be absurd to say that the requirement of the law as to such responsibility of the car

rier is absolute, and cannot be laid aside, even by the agreement of the parties, but that one-half or threefourths of this burden, which the law compels the carrier to bear, may be laid aside, by means of a contract limiting the recovery of damages to one-half or one-fourth of the known value of the property. This would be mere evasion, which would not be tolerated. Yet there is no reason why the contracting parties may not, in good faith, agree upon the value of the property presented for transportation, or fairly liquidate the damages recoverable in accordance with the supposed value. Such an agreement would not be an abrogation of the requirements of the law, but only the application of the law as it is, by the parties themselves, to the circumstances of the particular case. But that the requirements of the law be not evaded, and its purposes frustrated, contracts of this kind should be closely scrutinized."

[In this case, the general regulation attached to the contract, provided that the company should not be liable beyond one hundred dollars per head on horses and valuable live-stock, except by special agreement. This clause, the Court stated, "is plainly opposed to the law as established, so far as regards the negligence of the carrier. As a regulation, it is, therefore, of no effect. The law declares that the carrier shall be liable to the full extent of the value of the property, although there be no special agreement."

The Supreme Court of Mississippi has recently passed upon the question under consideration, taking its stand in direct accordance with the doctrine of the principal

case:

Southern Express Co. v. Seide, S. Ct. Miss., June 2, 1890. The Court say in this case: "Stipulations in contracts with common carriers of similar import with that under consideration have frequently been presented to the Courts for decision, and it is very generally held that their effect is to exempt the carrier from a greater responsibility, only when the loss occurs without the negligence or fault of the carrier; but where the loss springs from negligence, the full value may be recovered, notwithstanding the stipulation." To the same effect are the earlier cases of Southern Express Co. v. Moon (1863), 39 Miss. 822, and Chicago, St. L. & N. O. RR. Co. v. Abels (1883), 60 Id. 1017.

In Missouri, the question under discussion was considered in Harvey v. Terre Haute & I. RR. Co. (1881), 74 Mo. 538, where the Court said: "We do not regard a a contract limiting a right of recovery to a sum expressly agreed upon by the parties as representing the true value of the property shipped, as a contract in any degree exempting the carrier from the consequences of its own negligence. Such a contract fairly entered into, leaves the carrier responsible for its negligence, and simply fixes the rate of freight and liquidates the damages. This we think it is competent for the carrier to do."

[In the more recent case of McFadden v. The Missouri Pacific Ry. Co. (1887), 92 Mo. 343, the bill of lading stipulated that the defend ant should not be liable for more than one hundred dollars per head for the mules, which were carried at a reduced rate. Here RAY, J., after commenting upon and examining Hart v. Pennsylvania RR., VOL. XXXVIII.—50.

*

supra, Moulton v. St. Paul M. & M. Ry. Co., supra, and U. S. Express Co. v. Backman, infra, remarks: "Even under the rule declared in the former [Hart v. Pennsylvania] class of decisions, these provisions thus employed and resorted to by common carriers to restrict their liability, are to be tested by their fairness, justice and reasonableness. The reduced rate, if such it was, was the consideration for the exemption from liability beyond the one hundred dollars, even in case of injury and loss from the defendant's negligence." In distinguishing the case from Hart v. Pennsylvania RR., he says: “In [that case] * the discussion was had upon the terms of the bill of lading alone, and as the Court say, 'without any evidence upon the subject, and especially in the absence of evidence to the contrary,' and under the qualifications it contains, we cannot regard it as controlling authority in a casc where the evidence clearly shows absence of reduced or lower rate, or any graduation of compensation to the valuation. On the one hand it may be, as is there said, unjust, unreasonable, and repugnant to sound principles of fair dealing, for the shipper to reap the benefits of a contract, by which he secures a lower rate than the carrier might reasonably charge for the service rendered, if there be no loss, and to repudiate it in case of loss. Where the shipper procures the lawful rates of the carrier to be reduced in express consideration of the agreed value, upon which the compensation is based, he is, under numerous authorities, held to be estopped to say the value is greater when the loss occurs. Он

the other hand, it would, we think, be no less unfair, unreasonable and unjust that the carrier, without any sacrifice of his interests, or lawful demands, or diminution of his lawful charges, should secure, without any consideration therefor, such important advantages and release of liability to which he would otherwise be subjected under the law."

[The Compiled Statutes of Nebraska (ed. 1889) provide-"SEC. 111. Any railroad company receiving freight for transportation shall be entitled to the same rights and be subject to the same liabilities as common carriers. And whenever two or more railroads are connected together, the company owning either of said roads receiving freight to be transported to any place on the line of either of the roads so connected shall be liable as common carriers for the delivery of such freight to the consignee of said freight, in the same order in which such freight was shipped."

[Ch. 72, Id. page 628, provides, "SEC. 5, No notice either express or implied, shall be held to limit the liabilities of any railroad company as common carriers, unless they shall make it appear, that such limitation was actually brought to the knowledge of the opposite party and assented to by him or them, in express terms, before such limitation shall take effect."

[In Article XI. of the Constitution of this State it is provided, inter alia, by SEC. 4, "The liability of railroad corporations as common carriers, shall never be limited." In The Atchison & Nebraska RR. Co. v. Washburn & Leihy (1876), 5 Neb. 117, the Court held an agreement limiting the car

rier's liability to be "in violation of law and against public policy," and could "not lessen the plaintiff's responsibility as common carrier, nor remove its liability for negligence of its servants."

[Two cases have very recently been decided in the Supreme Court of New Hampshire upon this question, Duntley v. Boston & M. RR., July 26, 1890; and Durgin v. American Express Co., July 25, 1890; they follow the rule as laid down in Hart v. Pennsylvania RR. Co.,

subra.

[In New Jersey, the rule as laid down in Hart v. Pennsylvania RR. Co., supra, is followed: The Lydian Monarch (1885), D. Ct., D. N. J., 23 Fed. Repr. 298.

[The question was raised in New York, in the case of Magnin et al. v. Dinsmore (1874), 56 N. Y. 168, where the receipt contained, inter alia, the following clause: "It is further agreed, and is part of the consideration of this contract, that the Adams Express Company are not to be held liable or responsible for the property herein mentioned for any loss or damage arising from the dangers of railroad, ocean, steam, or river navigation, leakage, fire, or from any cause whatever, unless specially insured by them and so specified in this receipt; which insurance shall constitute the limit of the liability of the Adams Express Company in any event; and if the value of the property above described is not stated by the shipper, the holder hereof will not demand of the Adams Express Company a sum exceeding fifty dollars for the, loss or detention of, or damage to the property aforesaid." JOHNSON, J., who delivered the opinion of the Court, said; "The first question which

arises in this case is as to the meaning of the contract under which the plaintiffs claim to recover against the defendants; for it is no longer open to question, in this State, that in the absence of fraud or imposition, the rights of carrier and shipper are controlled by contract, in writing, delivered to the shipper by the carrier, at the time of the receipt of property for transportation." But in concluding he adds, "The terms of these contracts are very much under the control of the carriers, and they may justly be required to express in plain terms the entire exemption for which they stipulate. * If it

be desired to cover losses by negligence, it is not too much to say that the purpose must be clearly expressed." The next case in which this question was raised, was Steers v. The Liverpool, New York and Philadelphia Steamship Co. (1874), 57 Id. 1, which directly followed the ruling of the Court in Belger v. Dinsmore, infra. In Westcott et al. v. Fargo, President, etc. (1875), 61 Id. 542, the Court referring to the cases above mentioned, said: "This point must now be regarded as settled by recent decisions in this Court [The Commission of Appeals] and in the Court of Appeals. The result of these cases is, that it is lawful for a carrier to make such a contract as was entered into in the present case, exempting him from liability and that he may, by clear and distinct expressions, relieve himself from losses occasioned by his own negligence. On the other hand, general words, such as that he will not be liable for loss, or detention, or damage, are not to be construed to extend to losses, etc., occasioned by negligence."] In Magnin v.

Dinsmore 1877,70 Id. 410, ALLEN, J.. says: "The act which will deprive of the benefit of a contract for a limited liability fairly made, must be an affirmative act of wrong doing, not merely ordinary neglect in the course of the bailment. It need not necessarily be intentional wrong doing, but the mere omission of ordinary care in the safe keeping and carriage of the goods is not the misfeasance intended by the authorities."

[To the same effect is the earlier case of Belger v. Dinsmore (1872), 51 Id. 166, where the receipt given limited the defendant's liability to fifty dollars unless otherwise expressed, and the Court held that "a party accepting such an instrument declares his ascent by such acceptance, to those terms and conditions."

* *

[In North Carolina, the rule is established that a common carrier being an insurer against all losses and damages, except those occurring from the act of God or the public enemy, may by special notice brought to the knowledge of the owner of goods delivered for transportation, or by contract, restrict his liability as an insurer, where there is no negligence on his part. He cannot by contract even limit his responsibility for loss or damage resulting from his want of the due exercise of ordinary care. A contract restricting the liability of the carrier must be reasonable, and not calculated to ensnare or defraud the other party. Capehart v. Seaboard & Roanoke RR. Co. (1879), S1 N. C. 438. Here the bill of lading stipulated that in case of any claim for damages to the articles mentioned therein, the extent of such damage should be adjusted before the removal from