it is not the duty of the carrier to make inquiry as to the value, but it is the duty of the shipper to disclose the value if he seeks to hold the carrier cus Co., 227 U. S. 469, 33 SCt 267, 57 L. ed. 600 [rev (Tex. Civ. A.) 125 SW 614]; Adams Express Co. v. Croninger, 226 U. S. 491, 33 SCt 148, 57 L. ed. 314, 44 LRANS 257; George N. Pierce Co. v. Wells, 189 Fed. 561, 110 CCA 645 [aff 236 U. S. 278, 35 SCt 351, 59 L. ed. 576]; Macfarlane v. Adams Exp. Co., 137 Fed. 982; Calderon v. Atlas SS. Co., 69 Fed. 574, 16 CCA 332 [rev on other grounds 170 U. S. 272, 18 SCt 588, 42 L. ed. 1033]; The Bermuda, 29 Fed. 399, 23 Blatchf. 554; Muser v. American Express Co., 1 Fed. 382, 17 Blatchf. 412; Earnest v. Southern Express Co., 8 F. Cas. No. 4,248, 1 Woods. 573. Contra The City of Norwich, 5 F. Cas. No. 2,761, 4 Ben. 271 (in case of loss by negligence). Cal-Michalitschke v. Wells, 118 Cal. 683, 50 P 847. Conn.-Lawrence v. New York, etc., R. Co., 36 Conn. 63. D. C-Galt v. Adams Express Co., 11 D. C. 124, 48 AmR 742. Ill-Oppenheimer v. U. S. Express Co., 69 11. 62, 18 AmR 596. Kan.-Pacific Express Co. v. Foley, 46 Kan. 457, 26 P 665, 26 AmSR 107, 12 LRA 799. La. Baldwin v. Collins, 9 Rob. 468. Md.-De Wolff v. Adams Express Co., 106 Md. 472, 67 A 1099; Brehme v. Adams Express Co., 25 Md. 328. Mich.-D'Arcy v. Adams Express Co., 162 Mich. 363, 127 NW 261; Smith v. American Express Co., 108 Mich. 572, 66 NW 479. Minn.-Carpenter v. U. S. Express Co.. 120 Minn. 59, 139 NW 154 (construing New York law); J. J. Douglas Co. v. Minnesota Transfer R. Co., 62 Minn. 288, 64 NW 899, 30 LRA 860. Miss. Southern Express Co. V. Stevenson, 89 Miss. 233, 42 S 670. N. H.-Durgin v. American Express Co.. 66 N. H. 277, 20 A 328, 9 LRA 453. N. Y.-Boyle v. Bush Terminal R. Co., 210 N. Y. 389, 104 NE 933 [rev 151 App. Div. 551, 136 NYS 355] (holding that a clause in bill of lading, providing that liability was released to "$5.00 per 100" by reason of low rate and that shipper had option to pay higher rate without limitation, accepted by shipper of household goods, is effective to limit the liability of a carrier as to damage arising from its own negligence); Greenwald V. Barnett, 199 N. Y. 170, 92 NE 218, 35 LRANS 971 [aff 130 App. Div. 696, 115 NYS 311]; Tewes v. North German Lloyd SS. Co., 186 N. Y. 151, 78 NE 864, 8 LRA NS 199, 9 AnnCas 909; Magnin v. Dinsmore, 70 N. Y. 410, 26 AmR 608; Magnin v. Dinsmore, 62 N. Y. 35, 20 AmR 442 [overr by implication Westcott v. Fargo, 61 N. Y. 542, 19 AmR 300]; Belger v. Dinsmore, 51 N. Y. 166, 10 AmR 575; Cohen v. Morris European, etc., Express Co., 151 App. Div. 672, 136 NYS 489 [rev 132 NYS 347]; Gardiner v. New York Cent.. etc.. R. Co.. 139 App. Div. 17. 123 NYS 865 [aff 201 N. Y. 387, 94 NE 876, 34 LRANS 826. AnnCas1912B 281]; Jonasson V. Weir, 130 App. Div. 528. 115 NYS 6: Bates V. Weir, 121 App. Div. 275, 105 NYS 785; Huntington V. Dinsmore, 6 Thomps. & C. 195; Ghormley V. Dinsmore, 51 N. Y. Super. 196, 53 N. Y. Super. 36; Magnus v. Platt. 62 Misc. 499, 115 NYS 824; Feld v. Platt, 59 Misc. 226, 110 NYS 1118; Royal Costume Co. v. Weir, 48 Misc. 376. 95 NYS 575; Bernstein v. Weir, 40 Misc. 635, 83 NYS 48; Toy v. Long Island R. Co., 26 Misc. 792. 56 NYS 182; Goodfield v. Platt, 130 NYS 180; Hirsch v. New York Dispatch, etc., Co., 85 NYS 198; Wilson v. Platt. 84 NYS 143. Pa. Allebach v. Sanbe, 17 Pa. Dist. 468 (construing New York law). R. I.-Glenlyon Dye Works v. Interstate Express Co., 36 R. I. 558, 91 A 5; Ballou v. Earle, 17 R I. 441. 22 A 1113, 33 Am SR 881, 14 LRA 433. Wis.-Boorman V. American Ex liable beyond the stipulated sum.11 The shipper by accepting a shipping receipt containing a recital that the carrier is not to be held liable beyond a press Co., 21 Wis. 152. Eng.-Williams v. Midland R. Co., [1908] 1 K. B. 252. Que.-Dominion Express Co. V. Rutenberg, 18 Que. K. B. 50. [a] Reason for rule.-(1) "Before undertaking to become an insurer, it is but reasonable that the defendant should know the nature and value of the property, not only for the purpose of determining the extent of the liability incurred, but as well the degree of care to be exercised and the charge which would be reasonably commensurate therewith." Bates v. Weir, 121 App. Div. 275, 280, 105 NYS 785. To same effect Southern Express Co. v. Stevenson, 89 Miss. 233, 42 S 670. (2) A reason for sustaining the validity of a limitation of this character very frequently assigned is that of estoppel. Wells v. Neiman-Marcus Co., 227 U. S. 469, 33 SCt 267, 57 L. ed. 600; De Wolff v. Adams Express Co., 106 Md. 472, 67 A 1099; Atkinson v. New York Transfer Co., 76 N. J. L. 608, 71 A 278; Greenwald v. Weir, 130 App. Div. 696, 115 NYS 311, 131 App. Div. 568, 116 NYS 172 [aff 199 N. Y. 170, 92 NE 218, 35 LRANS 971]; Bates v. Weir, 121 App. Div. 275, 105 NYS 785; Noonan v. Wells, 68 Misc. 322, 123 NYS 903. (3) Again it is said it would conflict with public policy if the shipper should be allowed to reap the benefits of the contract if there is no loss, and to repudiate it in case there is a loss. Greenwald v. Barnett, 199 N. Y. 170, 92 NE 218, 35 LRANS 971 [aff 130 App. Div. 696, 115 NYS 311]. It a in a passage ticket for an ocean voyage limiting the amount for which the carrier shall be liable for loss or injury to baggage, unless a declaration of value in excess of that sum is made, covers a loss of goods occasioned by negligence, although there is no express provision exempting the carrier from liability for its own negligence; and in the absence of such declaration a recovery must be limited to the stipulated amount." Tewes v. North German Lloyd SS. Co., 186 N. Y. 151, 78 NE 864, 8 LRA NS 199, 9 AnnCas 909. [c] Such a stipulation is reasonable and consistent with public policy. Magnin v. Adams Express Co., 50 HowPr (N. Y.) 457. [d] Such a stipulation is not in violation of a statute prohibiting a carrier from limiting his commonlaw liability. Mather v. American Express Co., 2 Fed. 49, 9 Biss. 293. [e] Use of printed bills of lading as affecting operation of rule.-A common carrier may, by a contract fairly entered into with a shipper, limit the amount of its liability for negligence, and the validity of such a contract is not affected by the fact that the carrier uses printed bills of lading, which fix an arbitrary value for all packages, having no relation to their real value, beyond which it is not to be liable unless a greater value is stated by the shipper and more freight paid, where the facts are fully understood by the shipper who declines to place a valuation on the property and assents to the limitation in consideration of a reduced rate. Such stipulation will be valid even in case of loss by negligence. George N. Pierce Co. v. Wells, 189 Fed. 561, 110 CCA 645 [aff 236 U. S. 278, 35 SCt 351, 59 L. ed. 576]. [f] Whether value must be stated contract.-In Cohen V. Morris European, etc., Express, 132 NYS 347, it was held that a greater value is declared, so as to render inoperative the provision in a contract for carriage of goods limiting the carrier's liability to fifty dollars in the absence of a declaration of value when the goods are in storage and there is delivered to the carrier with which to get the goods a storage receipt declaring their full value to be fifteen hundred dollars, the view being taken that anything apprising the carrier of such excess value will be sufficient. On appeal this decision was reversed on the ground that the value must be stated in the contract itself. Cohen V. Morris European, etc., Express, 151 App. Div. 672, 136 NYS 489. [b] Applications of rule.-(1) A package was consigned to an express company for transportation without disclosure being made that it contained gold. It was stipulated that the company should not be liable for more than fifty dollars on any ship-in ment unless its true value was stated. The package was destroyed en route by fire. It was shown that, had disclosure been made, a greater charge would have been imposed for transportation, and that the package would have been put in a safe, under the care of special messengers. was held that, in the absence of proof of some affirmative act of wrongdoing, the company was entitled to an instruction that the recovery could not exceed fifty dollars Rowan v. Wells, 80 App. Div. 31, 80 NYS 226. (2) Plaintiff shipped package of furs, worth two thousand dollars by defendant express company. Plaintiff marked no value on the package and gave none in her communications to the express company; but the box had been previously used, and a one hundred and fifty dollar valuation was marked thereon, and this amount was stated by the express company in the receipt as the value of the package. Plaintiff accepted the receipt without demur, and after the loss of the package made no claim of mistake in valuation, but claimed the right to recover the full value of the furs in spite of the limitation of liability contained in the receipt. It was held that plaintiff's recovery was limited to one hundred and fifty dollars. Taylor v. Weir, 162 Fed. 585 [rev on other grounds 171 Fed. 636, 96 CCA 438]. (3) Where express receipts stated that the express company would not be liable for any loss caused by the wrongful or negligent action of the company's agents in any amount exceeding fifty dollars, unless the true value was stated in writing and an additional amount paid under special agreement at the company's office, loss of goods by the negligence of the carrier's agents would not make the company liable for more than the stipulated amount. in the absence of an agreement contemplated by the receipt. Rappaport V. White's Express Co., 146 Ann. Div. 576, 131 NYS 131. (4) "A stipulation 608, 41. Kallman v. U. S. Express Co., 3 Kan. 205; Duntley v. Boston, etc., R. Co., 66 N. H. 263, 20 A 327, 49 Am SR 610, 9 LRA 449; Atkinson v. New York Transfer Co., 76 N. J. L 71 A 278; Rosenthal v. Weir, 170 N. Y. 148, 63 NE 65, 57 LRA 527; Magnin v. Dinsmore, 70 N. Y. 410, 26 AmR 608; Greenwald v. Weir, 130 App. Div. 696, 115 NYS 311, 131 App. Div. 568, 116 NYS 172 [aff 199 N. Y. 170, 92 NE 218, 35 LRANS 971]. [a] The omission of the carrier to inquire as to the value of the goods is not a waiver of a provision in the contract limiting the liability to a specified sum. Feld V. Platt, 59 Misc 226, 110 NYS 1118. as [b] Pailure of shipper to declare the real value constitutes a fraud on the carrier and deprives it of its adequate reward, misleading it to the degree of care and security which it should provide in the custody and transportation of the property, and it is thereby relieved even in case of negligence. from liability beyond the amount named in the contract or notice. Porteous v. Adams Express Co.. 115 Minn. 281. 132 NW 296 (construing New York law): Magnin v. Dinsmore. 62 N. Y. 35. 20 AmR 442 [overr Westcott v. Fargo, 61 N. Y. 542, 19 AmR 300]. Effect of Interstate, Commerce Act § 10. Such an agreement is not in violation of the Interstate Commerce Act making it an offense to obtain transportation of property at less than the established rate from a carrier subject to the act." 44 Effect of Carmack amendment. Prior to the decisions of the United States supreme court definitely settling the question, it was held in some decisions 42. Wells v. Neiman-Marcus Co., 227 U. S. 469, 477. 33 SCt 267, 57 L. ed. 600 [rev (Tex. Civ. A.) 125 SW 614] (where it was further said: "There is no substantial distinction between a value stated upon inquiry, and one agreed upon or declared voluntarily"). "We are unable to see any distinction in law between an express misrepresentation of value made by the shipper to the carrier, and a statement made by the carrier to the shipper that the rate charged and the liability assumed by him are based upon the value of the goods being a sum named by him, and the reception of that statement by the shipper in silence, so far as the determination of the rights of the respective parties is concerned. The carrier has a right to infer from the silence of the shipper that his valuation is accepted by the latter as accurate, not only for the purpose of fixing transportation charges, but also for the purpose of determining the amount of liability in case of loss." Atkinson V. New York Transfer Co., 76 N. J. L. 608. 612, 71 A 278. 43. Van Winkle V. Adams Express Co., 26 N. Y. Super. 59. See also Hayes v. Adams Express Co, 73 N. J. L. 105, 107, 62 A 284 [aff 74 N. J. L. 537, 65 A 1044] (where a contract stating that when the shipper omits to declare the value of the goods he agrees that the value does not exceed fifty dollars was held under the circumstances not binding on the shipper, the court said: "The nature of the article shipped was known to the carrier, and its value does not appear to have been abnormal. The shipper therefore had the right to assume, in the absence of notice to the contrary, that the carrier would form his own judgment as to its value, so far as was necessary for the fixing of his compensation, without attempting to restrict his responsibility under the general law"). [a] Interstate shipments.-That the above doctrine would have no application to interstate shipments since the passage of the Carmack amendment see decisions of the supreme court cited supra § 220 notes 32-36. 44. Visanska v. Southern Express Co., 92 S. C. 573, 575, 75 SE 962 (where it was said: "We do not think the shipper was guilty of any violation of the Federal statute. The statute is directed against and covers every device or means which a shipper may adopt to obtain an advantage over other shippers or the carrier. It does not expressly prohibit undervaluation, and undervaluation under such a contract of shipment as the plaintiff made gives the shipper no advantage over the carrier or over other shippers who make the same contract and take the same risk. The contract of carriage shows that the carrier based his charge entirely on valuation-that is, on the [§ 222] (3) Limitation of Liability to Invoice Price or Value at Place of Shipment.48 A regulation that the liability of the carrier in case of loss shall be limited to the invoice value of the goods is a reasonable regulation as to the damage to be recovered and is valid. So a stipulation that the liability for loss shall be measured by the value at the time and the place of shipment is generally upheld,50 in the absence of statute otherwise providing. Such a stipulation will preclude a recovery by the consignee 49 measure of his responsibility in case Vigouroux v. Platt, 62 Misc. 46. Wells v. Neiman-Marcus Co., 227 U. S. 469, 33 SCt 267, 57 L. ed. 600 [rev (Tex. Civ. A.) 125 SW 614]; Adams Express Co. v. Croninger, 226 U. S. 491. 33 SCt 148, 57 L. ed. 314, 44 LRANS 257; Bernard v. Adams Express Co., 205 Mass. 254, 91 NE 325, 28 LRANS 293 and note, 18 Ann Cas 351; Cohn-Goodman Co. v. Wells, 32 Oh. Cir. Ct. 190. 51 computed on the basis of the invoice value of the goods damaged. Whatever is realized for the damaged goods must be credited on the invoice value the same as though the goods were abandoned to the carrier and the sale of the damaged goods were made by it. Pearse v. Quebec SS. Co., 24 Fed. 285. (2) If the shipper has received from the sale of the damaged goods the invoice price. after deducting the cost of importation, sale, etc., he cannot recover anything. The Lydian Monarch, 23 Fed. 298. (3) Where the goods are damaged to an amount less than the invoice value, but after the damage they are worth the invoice value with the cost of importation added, the carrier is not to be entirely relieved from liability, but the limitation as to value is applicable only, if at all, to restrict its liability in any event to the invoice price. Brown v. Cunard Steamship Co., 147 Mass. 58, 16 NE 717. [b] "Actual invoice cost."-Where trées cultivated by the shipper were delivered to the carrier on the agreement that the "actual invoice cost" should be the measure of damages in case of loss, "invoice cost" meant "value." Pierce v. Southern Pac. Co., 120 Cal. 156, 47 P 874, 52 P 302, 40 LRA 350. 50. U. S.-Inman v. Seaboard Air Line R. Co., 159 Fed. 960. Ala.-Louisville, etc.. R. Co. V. Oden, 80 Ala. 38; South, etc., Alabama R. Co. v. Henlein, 56 Ala. 368; lein, 52 Ala. 606, 23 AmR 578; Southern R. Co. v. Brewster, 9 Ala. A. 597, 63 S 790. 47. Collins v. Union Pac. R. Co., 96 Kan. 581. 152 P 649; Rankin v. Cincinnati, etc.. R. Co., 163 Ky. 183, 173 SW 377 (where it was said that where a shipper signs a contract for carriage of his goods limiting the carrier's liability to the valuation that must be agreed to by a shipper before he can be entitled to the minimum rate, his failure to state the value has no effect, and he will be conclusively presumed to have agreed to the maximum published valuation applicable); Wright v. Adams Ex-South. etc., Alabama R. Co. v. Henpress Co.. 54 Pa. Super. 485; Dodge v. Adams Express Co., 54 Pa. Super. 422; Pacific Express Co. v. Krower, (Tex.) 163 SW 9; Pacific Express Co. v. Ross, (Tex. Civ. A.) 154 SW 340, 344 (in which it was said: "The Croninger Case, being the latest expression of the Supreme Court of the United States on this question, must be considered as settling the law as to all cases coming within the purview of the decision, and must be followed whenever applicable, without regard to decisions of the Courts of Civil Appeals of this state, cited and relied upon by appellee"). But see Wright v. Adams Express Co., 230 Pa. 635, 79 A 760 (holding that the Carmack amendment did not have this effect). 48. See also infra $$ 237, 446. to [a] Meaning of this limitation.(1) The limitation to the invoice value is to be applied to each article contained in the shipment, but the carrier is not to be allowed, as goods which are damaged, the advantage of the actual value while it restricts the shipper to the invoice value. The true meaning of such a stipulation is that the carrier is not to be liable or accountable for more than the invoice value of the goods damaged or lost, and where there is a partial injury the damage is to be Colo.-Denver, etc., R. Co. v. A. Peterson Grocery Co., 59 Colo. 125, 129, 147 P 663 [cit Cyc]. Ga.-Central of Georgia R. Co. v. Murphey, 113 Ga. 514, 38 SE 970, 53 LRA 720. 11.-Tibbits v. Rock Island, etc., R. Co., 49 Ill. A. 567; Chicago, etc., R. Co. v. Harmon, 17 I. A. 640. Mo.-Gratiot St. Warehouse Co. v. Missouri, etc., R. Co., 124 Mo. A. 545, 102 SW 11; Horner v. Missouri Pac. R. Co., 70 Mo. A. 285; Rogan V. Wabash R. Co., 51 Mo. A. 665; Caples v. Louisville, etc., R. Co., 17 Mo. A. 14. Okl.-Missouri, etc.. R. Co. V. Walker, 27 Okl. 849, 113 P 907. S. C.-Grubbs V. Atlantic Coast Line R. Co., 101 S. C. 210, 85 SE 405; Matheson v. Southern R. Co., 79 S. C. 155, 157, 60 SE 437 [cit Cyc]. Utah. Bingham v. San Pedro, etc., R. Co., 39 Utah 400, 117 P 606. 51. See cases infra this note. [a] In Texas (1) a stipulation fixing the value at the place of shipment as the basis for estimating the measure of recovery is held to be a violation of the state statute prohibiting the carrier from making a contract limiting its liability. Ft. Worth. etc.. R. Co. v. Greathouse. 82 Tex. 104, 17 SW 834; Galveston, etc.. R. Co. v. Ball, 80 Tex. 602, 16 SW for the difference between the market value at the place of delivery and what he paid.52 There is nothing contrary to public policy in contracts of this character;53 and nothing in the Carmack amendment or other statutes relating to interstate commerce forbid limitations of this character.54 On the contrary, a contract for an interstate shipment made in a state where such a limitation of liability is forbidden by statute is valid notwithstanding the fact that it contains such a limitation, inasmuch as the Carmack amendment supersedes all state legislation on the subject.55 According to some decisions such a stipulation is thought not to be good if so worded as to deny to the shipper any recovery in case of loss for freight paid in addition to the value of the goods.56 But a limitation of liability as to value at the place of shipment should be construed to mean the value when delivered to the carrier, under contract of transportation, which would reasonably include freight paid either by the shipper or the consignee, since property under such circumstances at the place of shipment would reasonably be worth the invoice price with freight added. Limitations of this character do not apply to damages occurring from failure to deliver within a reasonable time, but only to loss or injury arising during the shipment;58 nor have they any application where the carrier wrongfully sells or converts 57 441; Southern Pac. R. Co. v. Maddox, 75 Tex. 300, 12 SW 815; Baltimore, etc., R. Co. v. Oriental Oil Co., 51 Tex. Civ. A. 336, 111 SW 979; International, etc., R. Co. v. Parish, 18 Tex. Civ. A. 130, 43 SW 1066; Houston, etc., R. Co. v. Davis, 11 Tex. Civ. A. 24, 31 SW 308; International, etc., R. Co. v. Anderson, 3 Tex. Civ. A. 8, 21 SW 691; Taylor, etc.. R. Co. v. Sublett, (A.) 16 SW 182; Taylor, etc.. R. Co. V. Montgomery, (A.) 16 SW 178; Gulf, etc.. R. Co. v. Booton, (A.) 15 SW 909. (2) It has been held that this is so in respect of interstate as well as intrastate shipments (Ft. Worth, etc., R. Co. v. Greathouse, 82 Tex. 104, 78 SW 834; Southern Pac. R. Co. v. D'Arcais, 27 Tex. Civ. A. 57, 64 SW 813; Houston, etc., R. Co. v. Williams, (Civ. A.) 31 SW 556), (3) although there is one decision which holds the contrary (Southern Pac. Co. v. Phillipson, (Civ. A.) 39 SW 958). (4) However, even in case of negligence, where there is such a stipulation the shipper should not be allowed as damages a greater amount than the price for which he has sold the property to the consignee. Gulf. etc., R. Co. v. Key, (A.) 16 SW 106. (5) It has been held that a contract of this character entered into in another state, where it is valid, is enforceable in Texas. St. Louis. etc., R. Co. v. Hambrick, (Civ. A.) 97 SW 1972. For present rule under the Carmack amendment validating limitations of this character for interstate shipments regardless of state statutes see infra note 55. 52. Matheson v. Southern R. Co., 79 S. C. 155, 60 SE 437. 53. Coleman v. New York, etc., R. Co., 215 Mass. 45, 102 NE 92. And see cases supra note 50. 54. Shaffer v. Chicago, etc., R. Co., 185 III. A. 615; Coleman v. New York, etc.. R. Co., 215 Mass. 45. 102 NE 92; Spada v. Pennsylvania R. Co., 86 N. J. L. 187, 92 A 379. 55. Galveston, etc., R. Co. v. Carmack, (Tex. Civ. A.) 176 SW 158. 56. Shea v. Minneapolis, etc., R. Co.. 63 Minn. 228, 65 NW 458; Horner v. Missouri Pac. R. Co., 70 Mo. A 285. 57. See infra § 237. 58. See infra § 237. 59. See infra § 237. 60. Illinois Cent. R. Co. v. Bogard, 78 Miss. 11, 27 S 879; McConnell v. Southern R. Co., 144 N. C. 87, 56 SE 559; Ruppel v. Allegheny Valley R. [10 C.J.-12] 60 the goods.59 So it has been held that such a limitation is void as against public policy in case of loss caused by negligence, on the principle that the effect of the stipulation is not alone to avoid inconvenience and uncertainty in the demand for damages, but to work a reduction in the real loss," although there is authority which sustains the opposite view, on the principle that the stipulation is not a limitation of the carrier's liability for negligence.61 This latter view is supported by the majority rule applicable to limitations of liability generally in respect of value.62 Like any other limitation of the carrier's common-law liability it must be supported by a consideration." [§ 223] (4) Stipulation in Bill of Lading or Receipt Delivered after Receipt of Goods for Shipment.64 To be binding as a part of the contract of shipment the stipulation limiting liability must be embodied in the contract made at the time the goods are shipped. If without any receipt or bill of lading being issued the goods are accepted by the carrier for transportation its common-law liability attaches, and the subsequent delivery to, and acceptance by, the shipper or his agent of a receipt or bill of lading containing such stipulation will not constitute a part of a binding contract, for in such case there is no consideration for the subsequent agreement. The doctrine that acceptance of a 65 Co., 167 Pa. 166, 31 A 478, 46 AmSR 666; Rhymer v. Delaware, etc., R. Co., 27 Pa. Super. 345; Erie Dispatch v. Johnson, 87 Tenn. 490, 11 SW 441. "The consignor ships to get the benefit of the market price at the place of destination, and the contract in cases of negligence that the damages shall be measured by the price at the place of shipment is pro tanto an agreement for partial exemption for the carrier's negligence, and is void." McConnell V. Southern R. Co.. 144 N. C. 87, 90. 56 SE 559. 61. Gratiot St, Warehouse Co. v. Missouri, etc., R. Co., 124 Mo. A. 545, 102 SW 11. 62. See supra § 211. 63. St. Louis, etc.. R. Co., v. Marshall, 74 Ark. 597, 86 SW 802; St. Louis, etc.. R. Co. v. Coolidge, 73 Ark. 112, 83 SW 333, 108 AmSR 21, 67 LRA 555, 3 AnnCas 582. And see supra § 190. 64. Exemption from damages theretofore occurring see infra § 238. Limitation or release of damages occurring prior to execution of contract see infra § 225. 65. Ala.-Louisville, etc., R. Co. v. Meyer, 78 Ala. 597. Ga.--Central R. Co. v. Dwight Mfg. Co., 75 Ga. 609. Ill-St. Louis Southwestern R. Co. v. Elgin Condensed Milk Co.. 175 III. 557, 51 NE 911, 67 AmSR 238; Merchants' Despatch Transp. Co. V. Furthmann, 149 Ill. 66, 36 NE 624, 41 AmSR 265: Michigan Cent. R. Co. v. Boyd, 91 Ill. 268: American Express Co. v. Spellman. 90 Ill. 455. Ind.-Louisville, etc.. R. Co. V. Craycraft, 12 Ind. A. 203, 39 NE 523. Iowa.-Stoner v. Chicago, etc.. R. Co., 109 Iowa 551, 80 NW 569; German v. Chicago, etc., R. Co., 38 Iowa 127. Kan. Atchison, etc., R. Co. v. Dill, 48 Kan. 210. 29 P 148; Kansas Pac. R. Co. v. Reynolds, 17 Kan. 251. Mass.-Hendrick v. Boston, etc., R. Co.. 170 Mass. 44, 48 NE 835; Perry v. Thompson. 98 Mass. 249; Gage v. Tirrell, 9 Allen 299. Mich.-Farnsworth v. National Express Co.. 156 Mich. 676, 678. 132 NW 441 [eit Cycl: Rudell v. Ogdensburg Transit Co., 117 Mich. 568, 76 NW 380, 44 LRA 415; Detroit, etc., R. Co. v. Adams, 15 Mich. 458. Minn. Southard V Minneapolis. etc., R. Co., 60 Minn. 382, 62 NW 442, 619. Mo.-Keyes-Marshall Bros. Livery Co. v. St. Louis, etc., R. Co., 113 Mo. A. 144, 87 SW 553. Nebr.-Union Pac. R. Co. v. Marston, 30 Nebr. 241, 46 NW 485. N. Y.-Waldron v. Fargo, 170 N. Y. 130, 137, 62 NE 1077; Guillaume v. Central Transp. Co., 100 N. Y. 491, 3 NE 489; Germania F. Ins. Co. V. Memphis, etc.. R. Co., 72 N. Y. 90, 28 AmR 113; Bostwick v. Baltimore, etc., R. Co., 45 N. Y. 712. Oh.--Gaines v. Union Transp.. etc., Co., 28 Oh. St. 418; Welsh v. Pittsburg, etc., R. Co., 10 Oh. St. 65, 75 AmD 490. S. C.-Frasier v. Charleston, etc., R. Co.. 73 S. C. 140, 52 SE 964. Tex.-Galveston, etc., R. Co. V. Botts, 22 Tex. Civ. A. 609, 55 SW 514: San Antonio. etc., R. Co. V. Wright, 20 Tex. Civ. A. 136, 49 SW 147; Gulf, etc.. R. Co. v. Wood, (Civ. A.) 30 SW 715; Missouri, etc., R. Co. v. Carter. 9 Tex. Civ. A. 677, 29 SW 565; Atchison, etc., R. Co. v. Grant 6 Tex. Civ. A. 674, 24 SW 286. Can.-Wilson v. Canadian Dev. Co., 33 Can. S. C. 432; North-West Transp. Co. v. McKenzie, 25 Can, S. C. 38. See also infra § 281. [a] As otherwise expressed, where a shipper does not receive the bill of lading from the carrier limiting its common-law liability contemporaneously with the delivery of the goods to the carrier, the carrier assumes the common-law liability. Southern R. Co. v. Levy, 144 Ala. 614, 39 S 95. [b] Reasons for rule.-(1) Where a shipper has entered into a special verbal agreement with the carrier, he has a right to assume that such agreement is embodied in the receipt given him by the carrier, or at least that the receipt contains nothing contrary to it. It is in the nature of a direct fraud or cheat for the company or its agents, after such verbal agreement, to insert a contract of an entirely different character in the written receipt and to present it to the shipper without directing his attention expressly to it and procuring his assent. And it is no defense for the company to show that the shipper should have been more diligent and watchful, and should have detected the fraud. Strohn v. Detroit, etc.. R. Co, 21 Wis. 554, 94 AmD 564. (2) It has also been said that aside from fraud or mistake such contract is void as being executed under duress. Texas, etc., R. Co. v. Avery, 19 Tex. Civ. A. 235, 46 SW 897. [c] Delivery to shipper after load 66 recepit or bill of lading containing stipulations limiting liability implies assent thereto, or that prior negotiations are merged in a subsequent written contract,67 has no application in such a case. It has been said that this principle is especially applicable to an action brought by the consignee, where, at the time the contract was made, it was agreed that the rights of the consignee should not be affected.68 And a recovery may be had for a breach of the parol contract without suing in equity to have the written contract reformed.69 Limitation of rule. If there is an understanding Ala. 597. [g] Delivery of bill of lading to shipper after injury to goods.—(1) Where an animal is injured while being loaded on the car after delivery to the carrier has taken place, stipulations in the bill of lading delivered after the injury has occurred will not protect the carrier. McCullough v. Wabash Western R. Co., 34 Mo. A. 23. (2) So also bills of lading signed by the carrier and mailed to the shipper at the place of destination will not affect the rights of the shipper under a special contract previously made at the time of shipment, particularly where the bill does not reach the shipper until after the injury has occurred. Park v. Preston, 108 N. Y. 434, 15 NE 705; Swift v. Pacific Mail SS. Co., 106 N. Y. 206, 12 NE 583 [aff 36 Hun 643]. to the provision of the act, it shall, on demand of the shipper, issue a receipt or bill of lading therefor. naming the classification, and that no carrier shall limit or change its common-law liability by contract or otherwise as to its responsibility for the negligent acts of its agents, etc.. with reference to property in its custody, providing that nothing contained in the act shall be construed to abridge or lessen the liability of any such carrier as it is under existing laws, did not change the commonlaw liability of carriers, and the mere failure of a shipper to demand a receipt containing a limited liability clause does not relieve the carrier from the obligation of giving such receipt in case it desired to limit its common-law liability. Farnsworth v. National Express Co., 166 Mich. 676, 132 NW 411. ing and ready for shipment.-(1) | Louisville, etc., R. Co. v. Meyer, 78 | erty is received by a carrier subject Where a shipper of live stock is required to sign a contract limiting the carrier's liability, after the stock is loaded and ready for shipment under an oral agreement, the limitation in the written contract is not binding. Atchison, etc., R. Co. v. Dill, 48 Kan. 210, 29 P 148; Kansas Pac. R. Co. v. Reynolds, 17 Kan. 251; Olds v. New York Cent., etc., R. Co., 107 App. Div. 26, 94 NYS 924; Southern Pac. R. Co. v. Meadors, 101 Tex. 469, 140 SW 427 [rev 61 Tex. Civ. A. 35, 129 SW 170]; Gulf, etc., R. Co. v. Looney, 51 Tex. Civ. A. 381, 115 SW 268; Gulf, etc., R. Co. v. Jackson, (Civ. A.) 86 SW 47 [rev on other grounds 99 Tex. 319, 89 SW 963]; McNeill v. Galveston, etc., R. Co., (Tex. Civ. A.) 86 SW 32; Southern Pac. Co. v. Anderson, 26 Tex. Civ. A. 518, 63 SW 1023; Texas, etc., R. Co. v. Avery, 19 Tex. Civ. A. 235, 46 SW 897; Missouri, etc., R. Co. v. Withers, 16 Tex. Civ. A. 506, 40 SW 1073; Missouri, etc., R. v. Carter, 9 Tex. Civ. A. 677, 29 SW 565. (2) It has been held. however, that where after the loading of a shipment one of the shippers, knowing that a written contract would be required, went to the office and signed one without reading it, and without knowing that it contained a clause limiting the company's liability to damages occurring on its own road and the shippers took a copy of the contract with them, but did not ask for time to read it before signing, and it did not appear that had they done SO the train would not have been held for such purpose, their failure to read the contract was their own fault, and not chargeable to duress. Houston, etc., R. Co. v. Smith, 44 Tex. Civ. A. 299, 97 SW 836. an [d] Delivery to shipper when shipment en route.-Where cars for the shipment of stock were furnished a shipper under a contract with the agent of the company, and the stock was received and shipped by the company under such contract, but other contract was presented to the shipper while he was en route with the stock, with a request that he sign it, which he did, in order to secure a right guaranteed by the original contract. but under protest that he did not assent to its terms and without having time to read its contents, the original contract will control. Wabash R. Co. v. Lannum, 71 Ill. A. 84. [e] After goods have been received and partly transported by the carrier under an oral contract without conditions, acceptance of a bill of lading containing a limitation of the carrier's common-law liability does not make the limitation binding on the shipper. Merchants' Despatch Transp. Co. v. Furthmann, 149 Ill. 66, 36 NE 624, 41 AmSR 265 [aff 47 I11 A. 561]. [h] Delivery of special contract after loss of goods.-(1) Delivery to the shipper of a contract limiting liability after goods have actually been destroyed or lost, although accepted by the shipper, is inoperative and does not estop him from asserting his claim against the carrier under its common-law liability. Baltimore, etc., R. Co. v. Doyle, 142 Fed. 669, 74 CCA 245; John Hood Co. v. American Pneumatic Service Co., 191 Mass. 27, 77 NE 638; Gott v. Dinsmore, 111 Mass. 45; Phoenix Powder Mfg. Co. v. Wabash R. Co., 101 Mo. A. 442, 74 SW 492; Bostwick v. Baltimore, etc., R. Co., 45 N. Y. 712; Lamb v. Camden, etc., R. Co., 4 Daly 483; McGregor v. Oregon R., etc.. Co., 50 Or. 527. 93 P 465, 14 LRANS 668: Harris v. Great Northern R. Co., 48 Wash. 437, 93 P 908. 96 P 224; Allen, etc., Co. v. Canadian Pac. R. Co.. 42 Wash. 64. 84 P 620, 7 AnnCas 468. (2) And it has been held that this rule is not affected by the fact that the shipper had been recently the carrier's freight agent, and that the receipts given by him as such contained the same stipulation. Gott v. Dinsmore, 111 Mass. 45. (3) Where the shipper surrendered a shipping receipt while the goods were supposed to be in transit and accepted a bill of lading containing a stipulation limiting liability for loss by fire, and it subsequently appeared that the goods had already been destroyed by fire and that that fact was known to the carrier, it was held that the stipulation in the bill of lading was not binding on the owner of the goods. Wilde v. Merchants' Despatch Transp. Co., 47 Iowa 247, 29 AmR 479. [k] When goods are shipped under a parol contract (1) covering future shinments, bills of lading given by the carrier are only evidence of the dates and amounts of shipments made under the preëxisting contract. St. Louis Southwestern R. Co. v. Elgin Condensed Milk Co.. 74 11. A. 619 [aff 175 111. 557, 51 NE 911, 67 AmSR 238]. (2) Where plaintiff sued for breach of a contract for the through shipment of cattle, and defendant, by its answer, relied on a written contract by which it undertook merely to deliver the cattle to a connecting line at an intermediate point, in reply to which plaintiff pleaded that he had signed the written contract after the cattle had been shipped on defendant's representation that it was the same as the verbal contract, the court erred in overruling plaintiff's motion to require defendant to file the written contract. Caldwell v. Cincinnati, etc., R. Co., 51 SW 575, 21 KyL 397. 66. See supra §§ 178. 182. 67. Bostwick v. Baltimore, etc., R. Co., 45 N. Y. 712 [rev 55 Barb. 137]: Hamilton v. Western North Carolina R. Co., 96 N. C. 398, 3 SE 164. 68. Frasier v. Charleston, etc., R. Co., 73 S. C. 140, 52 SE 964. 69. Louisville, etc.. R. Co. V. Cooner. 56 SW 144, 21 KyL 1644. 70. Shelton v. Merchants' Dispatch Transp. Co., 59 N. Y. 258; Ft. Worth, etc., R. Co. v. Wright, 24 Tex. Civ. A. 291. 58 SW 846. [a] In the absence of any such understanding the acceptance of a shipping receipt or bill of lading will not be deemed to be a merger of a previous oral agreement under which the goods were shipped, so as to preclude proof of such oral agreement in contradiction of the terms of the written instrument. Bostwick v. Baltimore, etc., R. Co., 45 N. Y. 712; Hamilton v. Western North Carolina R. Co., 96 N. C. 398, 3 SE 164. [i] Bill of lading given by connecting carrier.-Where a railroad company agreed, in consideration of a consignor's routing freight by its line, to furnish through refrigerator cars for transportation of perishable products, the agreement is not superseded by a bill of lading given by a connecting carrier at the original point of shipment, whereby liability was lessened, the contracts being inSouthwestern R. Co. v. Elgin Condensed Milk Co., 74 Ill. A. 619 [aff 175 Ill. 557, 51 NE 911, 67 AmSR 238]. [3] Statutory provisions.-In Michigan Pub. Acts (1909) No. 300 [e] Written agreement contem§ 40, providing that, whenever prop-plated.-If it appears that the ship [f] Bill of lading forwarded by mail to destination. Where a carrier receives freight for shipment to a point beyond its line, accepting pay-dependent of each other. St. Louis ment for the entire route, and the bill of lading is not delivered at that time but is forwarded by mail to the place of destination, the shipper is not bound by a stipulation therein limiting the carrier's liability to losses occurring on its own line. [b] Whether shipment was in pursuance of a prior oral contract, or under the terms of a written bill of lading which the shipper contends was supposed by him to be a mere memorandum as to the right of his agent to accompany the goods, should be determined as a question of fact. Black v. Wabash, etc., R. Co., 111 Ill. 351, 53 AmR 628. 74 negligence of the carrier or its servants;" and the right of the carrier to limit its liability in this regard is not affected by the Carmack amendment.72 However, in accordance with general principles already stated,73 a carrier cannot in any event limit its liability for delay resulting from its own negligence or the negligence of its agents or servants, either at common law or under the Carmack amendment.75 This is especially true where there is a legislative declaration as to when a common carrier shall be liable for delay; this liability cannot be abridged by special contract.76 So a contract limiting liability for delay is inoperative where the shipper is induced to enter into such contract by the false representations of the carrier's agent;77 and a stipulation exempting a carrier from liability for delay in transportation does not relieve it in case of delay from an obligation assumed by the carrier to re-ice the shipment adequately from the point of shipment to destination." As in the case of any 78 Place of delivery. A carrier may contract that goods destined for a station at which the business does not warrant any building or agent, and at which there is none, shall be left on the platform without any further responsibility on its part. 81 80 [225] f. Limitation or Release of Damages Occurring Prior to Execution of Contract.s A contract releasing or limiting the liability of a carrier for damages already accrued, without any new consideration therefor, is void.82 It is unreasonable to require a shipper to release the carrier from a liability already accrued on account of negligence or failure to perform a duty owing to shippers.83 A separate consideration is necessary to render a contract of this character valid.84 It has been held that a contract of this character in so far as interstate shipments are concerned is in contravention of the Elkins act and void.85 per never understood nor contem- by storm, failure of machinery or 71. Mo.-Smith v. Chicago, etc., R. Co., 112 Mo. A. 610, 87 SW 9; Vaughn v. Wabash R. Co., 78 Mo. A. 639. Okl.-St. Louis, etc.. R. Co. v. Zickafoose, 39 Okl. 302, 135 P 406. Coast S. C.-Geraty v. Atlantic Va.-Adams Express Co. v. Allendale Farm. 116 Va. 1, 81 SE 42. Eng.-Lord v. Midland R. Co., L. R. 2 C. P. 339; Duckham v. Great Western R. Co., 80 L. T. Rep. N. S. 774. Ont.-Brodie v. Northern R. Co., 6 Ont. 180. [a] Rule applied.-(1) The carrier may stipulate against liability for any delay occasioned by want of opportunity to forward goods beyond places where the carrier had stations. Brodie v. Northern R. Co., 6 Ont. 180. (2) A stipulation that the carrier should not be liable for delay by reason of strikes is just, reasonable, and not inconsistent with public policy. Leavens v. American Express Co., 86 Vt. 342, 85 A 557, AnnCas 1915C 1188 and note. (3) A provision whereby the carrier is not bound to deliver cattle at destination at any particular hour, or in season for any particular market is a reasonable and valid one. Fulbright v. Wabash R. Co., 118 Mo. A. 482, 94 SW 992; Smith v. Chicago, etc., R. Co., 112 Mo. A. 610, 87 SW 9; St. Louis, etc., R. Co. v. Zickafoose, 39 Okl. 302. 135 P 406. (4) A condition in a shipping contract that the company will not be responsible for any damage to any meat on the ground of loss of market, provided the same is delivered within a reasonable time after the arrival thereof at the station from whence delivery is to be made, is reasonable. Lord v. Midland R. Co., L. R. 2 C. P. 339. (5) A special contract for the carriage of cattle, providing that all damages caused by delays should be compensated by the repayment to the shipper of sums expended by him for food and water for the cattle, and supported by a reduced rate, is valid, and enforceable in an action against the carrier, where it appeared that the delays were not occasioned by the carrier's negligence. Vaughn v. Wabash R. Co., 78 Mo. A. 639. (6) A stipulation that the carrier shall not be responsible for any delay caused 73. See supra § 194. U. S.-Ormsby v. Union Pac. Kan. Atchison, etc., R. Co. v. Dit- Mich. Sisson v. Cleveland, etc., R. Mo.-Smith v. Chicago, etc., R. Co., N. C.-Branch v. Wilmington, etc., Okl.-St. Louis, etc.. R. Co. v. Cox, car 82. Ark.-Missouri, etc., R. Co. v. Sneed, 85 Ark. 293, 107 SW 1182; St. Louis, etc., R. Co. v. Burgin, 83 Ark. 502, 104 SW 161. Colo.-Colorado, etc., R. Co. V. Breniman, 22 Colo. A. 1, 125 P 855. Mo.-Vivion V. Chicago, etc.. R. Co., 172 Mo. A. 352, 157 SW 971. N. Y.-Clark v. Ulster, etc., R. Co., 189 N. Y. 93, 81 NE 766, 121 AmSR 848, 13 LRANS 164, 12 AnnCas 883. Okl.-St. Louis. etc.. R. Co. V. Walker, 37 Okl. 784, 133 P 185, 41 Okl. 382, 138 P 144. Tex.-Pecos, etc., R. Co. v. Stinson, (Civ. A.) 181 SW 526. [a] Applications of the rule.—(1) Where, after a carrier has breached its verbal contract to furnish cars for the transportation of cattle, the shipper, without any additional consideration, signs a bill of lading the terms of which he does not read or understand, waiving any claims for failure to provide cars in time, the stipulation is not binding on the shipper. Pecos, etc.. R. Co. v. Stinson, (Tex. Civ. A.) 181 SW 526. (2) A stipulation in a bill of lading, that the shipper waives all causes of action that may have accrued to him by reason of any representation made to him prior to the execution of the bill of lading, and that all such prior representations are merged in the contract, does not operate to release a claim arising under a prior inde [a] Goods to be shipped "at the convenience" of the carrier.--A stipulation in the contract of shipment that merchandise will be shipped "at the convenience of the company" will not protect it from liability for an unreasonable delay. It would be against public policy to allow riers to free themselves from their common-law obligation to ship in a reasonable time by stipulation that they should consult their own convenience about the time of carriage of goods intrusted to their custody for that purpose. Branch V. Wil-pendent contract terminated by the mington, etc.. R. Co., 88 N. C. 573. 75. New York, etc., R. Co. v. Peninsula Produce Exch., 122 Md. 215, 89 A 433. 76. Nelson v. Great Northern R. Co., 28 Mont. 297, 72 P 642. 77. Hamilton v. Wabash R. Co., 80 Mo. A. 597 (holding that, where a written contract for shipment of stock, containing a provision against liability of the carrier for delay, was entered into on a false representation by the carrier's agent that the train on which live stock was shipped had time to reach a certain point before departure of a live stock train on which the stock was intended to be forwarded to market, such provision did not preclude a recovery by the shipper for delays caused by negligence of the carrier). 78. Geraty v. Atlantic Coast Line R. Co., 81 S. C. 367, 62 SE 444. 79. Parker v. Atlantic Coast Line R. Co., 131 N. C. 827, 43 SE 1005, 133 N. C. 335, 45 SE 658, 63 LRA 827. 80. Allam v. Pennsylvania R. Co., 183 Pa. 174, 38 A 709, 39 LRA 535 (where it was held that, under a con parties. Vivion v. Chicago, etc., R. Co.. 172 Mo. A. 352, 157 SW 971. 83. St. Louis, etc., R. Co. V. Pearce, 82 Ark. 339, 101 SW 763. 84. St. Louis, etc.. R. Co. V. Pearce, 82 Ark. 339. 101 SW 763. [a] Sufficiency of consideration.(1) The furnishing of cars to a shipper on terms the same as those given to other shippers constitutes no consideration for a release of damages sustained by a prior breach of the carrier's common-law duty to furnish cars on request. Here is no separate consideration, because the carrier merely contracted to do what it is at law bound to do. St. Louis, etc., R. Co. v. Pearce, 82 Ark. 339, 101 SW 763. (2) That a carrier of live stock furnished free transportation to the shipper as a caretaker is not a consideration rendering binding a contract contained in a subsequently signed bill of lading waiving damages for failure to furnish cars as orally agreed. Pecos, etc., R. Co. v. Stinson, (Tex. Civ. A.) 181 SW 526. 85. Stewart v. Chicago, etc., R. Co., 172 Iowa 313, 151 NW 485. |