damages for a breach of contract or for the non-fulfilment of any legal obligation, is not to be regulated by lex fori. These are generally governed by lex loci contractus.' In a comparatively recent case it was held that whatever concerns the rights of parties in matters of contract is governed by the lex loci contractus, and the remedy and whatever relates to the limitation of actions, by the lex fori." 1 The Halley, 2 L. R. Adm. & Ec. 10; Story on Conf. of Laws, § 558 and cases cited; Courtois v. Carpentier, 1 Wash. C. C. 376; Consequa v. Willings, Peters C. C. 225; The Brooke v. N. Y., L. E. & W. R. CHAPTER VIII. THE RIGHT OF CARRIERS TO LIMIT THEIR COMMON LAW LIABILITY. The law in England, § 100. Rule in Alabama, § 105. Rule in California, § 107. Rule in Colorado, § 108. Rule in Connecticut, § 109. Rule in Dakota, § 110. Rule in Maryland, § 120. Rule in Pennsylvania, § 133. Rule in Delaware and Florida, § 111. Rule in South Carolina, § 134. § 100. AT common law a common carrier is an insurer of the property received by him for transportation against all loss and damage happening thereto while under his control unless occasioned by the act of God or the public enemy. The question was early raised whether the carrier could limit his common Price v. Hartshorn, 44 Barb. (N. Y.) 655; Fish v. Chapman, 2 Georgia, 349; New Jersey Steam Nav. Co. v. Merchants' Bank, 6 Howard, 344; law liability by a special contract. By the early part of this century it came to be settled law in England that the carrier could so limit his liability even to the extent of exempting himself from the consequences of his own negligence. Later legislation has however modified the laxity of the rule laid down by the courts. Thus the Railway and Canal Traffic Act, 17-18 Victoria, C. 31, sec. 7, provides that no special contract shall be binding upon the party unless signed by him or the person delivering the goods to be carried and also requires that the conditions of such contract shall be just and reasonable. The effect of this act was to leave to the courts the final decision as to whether any particular contract between a shipper and a carrier contained a reasonable and just limitation of the carrier's liability. The Railway and Canal Traffic Act was not 1 Southcote's Case, 4 Rep. 84 (1601); Morse v. Slue, 1 Vent. 190 (1684); Hide v. Proprietors, 1 Esp. 36. 2 Nicholson v. Willan, 5 East, 507; Anonymous v. Jackson, Peake's Add. Cas., 183; Covington v. Willan, Gow, 115; Munn v. Baker, 2 Stark. 226; Clay v. Willan, 1 H. Bl. 298; Clarke v. Gray, 6 East, 564; Hyde v. Trent. Nav. Co., 5 T. R. 389; Izett v. Mountain, 4 East, 371; Ranger v. Great Western R. R. Co., 1 Railway & Canal Cas. 1; Riley v. Horne, 5 Bing. 217; Harris v. Packwood, 3 Taunton, 264; Smith v. Horne, 8 ib. 144; Leeson v. Holt, 1 Stark. 148; Beck v. Evans, 16 East, 244; Lowe v. Booth, 13 Price, 329; Wyld v. Pickford, 8 M. & W. 443; Carr v. Lancashire, etc., R. R. Co., 7 Exch. 707; Kirk, etc., R. R. Co. v. Crisp, 14 C. B. 527; Slim v. Great Northern R. R. Co., 14 C. B. 647; Chippendale v. Lancashire, etc., R. R. Co., 7 Railway & Canal Cas. 824; Great Northern R. R. Co. v. Morville, 7 ib. 830; Austin v. Manchester, etc., R. R. Co., 10 C. B. 454; S. C. 16 Q. B. 600; Shaw v. York, etc., R. R. Co., 13 Q. B. 347; 6 Railway Cas. 87; Macauley v. Furness R. R. Co., 21 W. R. 140; 27 L. T. N. S. 485; Taubman v. Pacific Steam N. Co., 26 L. T., N. S. 704; Glenister v. Great Western R. R. Co., 22 W. R. 72; 29 L. T. N. S. 423; Gallin v. L. & N. W. R. R. Co., L. R. 10 Q. B. 212; Phillips v. Clark, 2 C. B. N. S. 156; 3 Jur. N. S. 467; 26 L. J. C. P. 166. Canadian Cases: La Pointe v. Grand Trunk R. R. Co., 26 U. C. Q. B. 479; Dodson v. Grand Trunk Ry. Co., 7 Canada, L. J. N. S. 263, S. C. of Nova Scotia; English rule is defined in Camp. v. H. N. Y. Stm. Co., 41 Conn. 333. 3 See also 31 and 32 Vict., C. 119, sec. 16; 34 and 35 Vict., C. 78, sec. 12; Baxendale v. Great Eastern Ry. Co., 38 L. J. Q. B. 137; 4 L. R. Q. B. 244; 17 W. R. 412; 10 B. & S. 212; Morville v. Great Northern Ry. Co., 16 Jur. 528; 21 L. J. Q: B. 319; Wise v. Great Western Ry. Co., 1 H. & N. 63; 25 L. J. Exch. 258. adopted in Canada,' but the Railway Act of 1879 (42 Vict. C. 9, sec. 25, subsec. 4) declared that the party aggrieved by any neglect or refusal in the premises should have an action therefor against the company, from which action the company should not be relieved by any notice, condition or declaration, if the damage had arisen from any negligence or omission of the company. Hence it was held that a carrier did not escape where stock was killed or lost by its negligence though carried under a bill of lading whereby they were carried entirely at the owner's risk." § 101. In the United States it has been held in most of the States that carriers may limit their liability except for negligence, but in order to make the contract for diminished liability binding there must be a consideration therefor. A lower rate of freight is a sufficient consideration. Thus where a shipper refuses to give the value of goods when asked, the carrier may limit his liability and under such circumstances a carriage at a reduced rate is a good consideration for an arbitrary limitation of value on goods contained in the bill of lading. In the State of New York where a carrier agreed to transport cattle at less than one-half the usual rates under a special contract releasing him from liability for loss "from whatever cause arising," it was held that the contract was valid and exonerated the carrier from liability for any injury to the cattle due to the negligence of his employé. Shippers may contract in consideration of reduced freight to exempt the carrier from responsibility for over-crowding and suffocation of life-stock and having made such contract are bound by it. 1 Hamilton v. Railway Co., 23 U. C. Q. B. 600; Harris v. Edmonstone, 4 Low. Can. Jur. 40; Samuel v. Edmondstone, 1 Low. Can. Jur. 89; Stevenson v. Gildersleeve, 2 U. C. C. P. 495. H. R. R. Co., 48 N. Y. 498; Georgia Mather v. American Express Co., Dodson v. Grand Trunk Ry. Co., 2 Fed. Rep. 49. 7 Can. Law Journal, 263. 3 Dillard v. Louisville, etc., R. R. Co., 2 Lea (Tenn.), 288; B. & O. R. R. Co. v. Brady, 32 Md. 333; Nelson v. 5 Mynard v. S. B. & N. Y. R. Co., 7 Hun (N. Y.), 399. Squire v. N. Y. C. R. R. Co., 98 Mass. 239. § 102. In some of the cases the question has been raised whether a carrier transporting under a bill of lading or other contract limiting his liability, is a special bailee for hire or is still a common carrier with enlarged exemption. In most of the States where the question has been discussed, it has been held that notwithstanding a special contract, a common carrier still remains such and is responsible for a higher degree of diligence than an ordinary bailee. If there be any fault or negligence he is liable in spite of the contract.' Hence the proof of a loss within an exception in the bill of lading makes out a prima facie case against the carrier and puts upon him the onus of proving that it was not due to his negligence. In Pennsylvania the rule is different. In that State the decisions give to a special contract the effect of converting the common carrier into a special bailee for hire, whose duties are governed by his contract and against whom, if negligence be charged, it must be proved by the party injured.3 § 103. The right of a common carrier to restrict his common law liability by special contract has been fully considered in the Federal Courts where the following propositions are established: that carriers can limit their common law liability by written contract; "that they cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law and that it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence 1 Kirby v. Adams Express Co., 2 Mo. App. 369; Drew v. Red Line Transit Co., 3 Mo. App. 495; A. & N. R. R. Co. v. Washburn, 5 Neb. 117; Steele v. Townsend, 37 Ala. 247; Brown v. Adams Ex. Co., 15 W. Va. 812; Kimball v. Rutland & Burlington R. R. Co., 26 Vt. 248; Lamb v. C. & A. R. R. and Transit Co., 2 Daly, 454; Lengsfield v. Jones, 11 La. Ann. Rep. 624; Hunt v. Morris, 6 Martin (La.), 676. 2 Dillard v. L. & N. R. R. Co., 2 Lea (Tenn.), 288; Steele v. Townsend, 37 Ala. 247. 3 Verner v. Sweitzer, 32 Pa. St. 208; Farnham ». C. & A. R. R. Co., 55 ib. 53; American Express Co. v. Sands, ib. 140; Patterson v. Clyde, 67 ib. 500; R. R. Co. v. Lockwood, 17 Wall. 357. See also Moore v. Evans, 14 Barbour (N. Y.), 524; Simmons v. Law, 3 Keyes (N. Y.), 217. |