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Kansas R. Co., 56 Mo. App. 282.

Washington. — Allen, etc., Co. v. Cana-
dian Pac. R. Co., 42 Wash. 64, 84 Pac.
620.

52. Southern Exp. Co. v. Barnes, 36
Ga. 532.

53. Illinois Match Co. v. Chicago, etc.,
R. Co., 250 111. 396, 95 N. E. 492.

54. Central, etc., R. Co. v. Murphey,
116 Ga. 863, 43 S. E. 265, 60 L. R. A. 817;
Central R., etc., Co. v. Avant, 80 Ga. 195,
5 S. E. 78; Richmond, etc., R. Co. v.
Shomo, 90 Ga. 496, 16 S. E. 220; Mc-
Elveen v. Southern l-J. Co., 109 Ga. 249,
34 S. E. 281.

55. Coats V. Chicago, etc., R. Co., 239
ill. 154, 87 N. E. 929.

56. Louisville, etc., R. Co. v. Cooper,
i;i Ky. L. Rep. 496.

57. I'Vemont, etc., R. Co. v. New York,
lie, I-;. Co., 66 Neb. 159, 92 N. W. 131,
.".'.I I,. R. A. 939.

58. Hill 7: (u-orgia, etc., R. Co., 43
S. C. 461, 21 S. IC. 337.



§§ 2>72S-Z727 carriers. 3348

stamps, that in case of injury to the goods only the carrier having custody of the
goods at the time of the injury shall be liable, cannot be regarded as part of the
contract. ^'^

Name of Station Where Liability Ceases. — In a contract by a consignor
and a railroad company that the liability of the company shall cease after the goods
pass out of its possession, an omission in the name of the station where the lia-
bility ceases is immaterial.^''^

§ 3726. Reasonableness. — A stipulation in a bill of lading by one of a
line of carriers that the company in whose possession the goods are at the time
of loss or damage shall alone be liable is a reasonable one.*'^

Connecting Carrier Making Independent Contracts. — Where connecting
carriers made independent contracts with a shipper to carry over their several
lines, the stipulation in the contract of each that its liability shall be limited to its
own line will be held reasonable, in the absence of evidence to the contrary.*^^

§ 3727. Consideration. — A stipulation that a carrier's liability shall cease on
its delivery to a forwarding carrier is valid without regard to consideration, the
carrier being under no obligation to carry beyond its own terminus,''*^ but a con-
tract between a railroad company contracting for through carriage of freight, and
a shipper, limiting the liability of the carrier to loss or injury on its own line, is
moperative unless based on a valid consideration.*^-^

Initial Carrier Receiving More than Local Rates. — An initial carrier,
w'hich in its bill of lading stipulates that it shall be liable only for loss occurring
on its own line, is not liable for loss occurring on a connecting line, although by
virtue of its through traffic arrangements it received more than the local rates for
the haul, and although it contracted for the through rate, and provided in its bill
of lading that the connecting lines should have the benefit of all exceptions and
conditions contained therein.'"'-^

Exemption in Through Contract Where Carriers without Arrange-
ment Inter Sese. — If otherwise unobjectionable, a limitation of the carrier's lia-
bility contained in a through bill of lading, stipulating for shipment at special
rates over several distinct, independent connecting lines, is not void because the
several carriers had no arrangement inter sese whereby the shipper could, upon
demand, have obtained continuous through transportation upon terms of unre-
stricted liability of the carriers.*''^

New Contract by Succeeding Carrier. — AA'here goods are shipped under a
through contract of shipment, a new contract made by the shipper with a connect-

59. Provision in fine print obscured by Tcimcsscc. — Nashville, etc.. Railway v.
stamp.— Allen, etc., Co. v. Canadian Pac. Stone, 112 Tenn. 348, 79 S. W. 1031, 105
R. Co., 42 Wash. 64, 84 Pac. 620. Am. St. Rep. 955.

60. Name of station where liability 64. Arkansas.— Ch\cd.go, etc., R. Co. v.
ceases.— Minter Bros. v. Southern Ivan- Cotton, 87 Ark. 339, 112 S. W. 742.
sas R. Co., 56 Mo. App 282. Mi^..oHn.-Simmons Hardware Co. v.

61 Reasonableness.-A^.rf/. r^^'''Jr-v St. Louis, etc., R. Co., 140 Mo. App. 130,
Phifer V. Carolina Cent. R. Co., 89 iN. -.on c \\t aao

/'•mi A- \ T> ^orv -20 O. W . 663.

C. 311, 4o Am. Rep. 687. Texas.— San Antonio, etc., R. Co. v.

Av'-'-'iVVr'^ r 'a \ ir^'^''^^/" in?' Wright, 20 Tex. Civ. App. 136, 49 S. W.
V. Wright (Tex. Civ. App.), 3b b. W. 106. ^.„

62. intermediate carrier requiring sep- !^^^^^^ contract-Written contract sub-

arate shipping contract.-Houston, etc., ^.equently signed.-See post, "Verbal and

?7 S°\V 31?''' '■ Written Contract."

63.' Consideration.- -^/afca;»a.— A limita- , 65- Initial carrier receiving more than
tion of liability of an initial carrier for local r^es.— Hoffman v. Union Pac. R.
injuries to a shipment of lumber to those Co.. 8 Kan. App. 379, 56 Pac. 331.
occurring on its line requires no other 66. Exemption in through bill of lad-
consideration than the shipment itself. ing— Where connecting carriers without
McNeill V. Atlantic, etc., R. Co., 161 Ala. arrangement inter sese. — Deming v. Mer-
319. 49 So. 797. chants', etc., Storage Co., 90 Tenn. (6

Missouri.— Hance v. Wabash Western Pickle) 306, 17 S. W. 89, 13 L. R. A. 518,

R. Co., 56 Mo. App. 476. so holding as to a fire exemption.



3349



LIMITATION OF LIABILITY.



;§ 3727-3730



ing carrier, after it has received the goods as a connecting carrier, merely limit-
ing its liability, being without consideration, is void."''

§ 3728. Time of Contract.— Time of Delivery of Bill of Lading to
Shipper. -^A bill of lading, containing a clause which limits the liability of each
connecting road or line, to loss or injury suffered while on its line, and until the
goods are delivered to the next connecting line, should be tendered to the shipper
at the time he oft'ers his goods for shipment. If so tendered and accepted by him
and the goods are shipped, this is a legitimate limitation of the measure of the
carrier's liability, and becomes a part of the contract, binding on the contracting
parties. If the shipper contemporaneously with the delivery of the goods to the
carrier, does not receive a bill of lading from the carrier limiting its common-law
liability, the carrier will be bound to deliver the goods safely, except as relieved
at common law.^^ Where a shipper of goods over the lines of connecting car-
riers does not receive a bill of lading from the initial carrier limiting its common-
law liability contemporaneously with the delivery of the goods to such carrier, the
carrier assumes a common-law liability .'^'^

§ 3729. Choice between Full and Limited Liability Contract. — \\'here
the shipper is refused an opportunity to ship as instructed, a stipulation in the
contract of carriage limiting the initial carrier's liability to its own line is void,"^"
but a stipulation in a through bill of lading of nonliability for loss by fire through-
out the whole distance, issued by a carrier having a line extending only part way
to the destination, is valid, where it has a rate over its own line for which, if re-
quired, it assumes responsibility for such loss."^

§ 3730. Knowledge and Assent of Shipper. — Where the shipper accepts
and acts upon a bill of lading containing an express agreement limiting each car-
rier's liability to its line, his knowledge of such agreement will, in the absence of
fraud or mistake, be conclusively presumed and he will be bound thereby, and will
not be permitted to show he was ignorant of its contents;"^- whether he read it or
not,"^ certainly where he has been accustomed to ship under similar contracts.''"*



67. New contract by succeeding carrier.
- Barnes v. Long Island R. Co., 93 N.
Y. S. 616, 47 Misc. Rep. 318, reversed in
100 X. Y. S. 593. 115 App. Div. 44.

68. Time of delivery of bill of lading
to shipper. — Southern R. Co. v. Levy, 144
Ala. G14. 39 So. 95; Louisville, etc., R.
Co. V. Meyer, 78 Ala. 597, 27 Am. &
Eng. R. Cas. 44; Jones v. Cincinnati, etc..
R. Co., 89 Ala. 376, 8 So. 61, 45 Am. &
Eng. R. Cas. 321; Louisville, etc., R. Co.
V. Cowherd, 120 Ala. 51, 23 So. 793; Mou-
ton V. Louisville, etc., R. Co., 128 Ala.
537, 29 So. 602; Louisville, etc., R. Co.
v. Touart, 97 Ala. 514, 11 So. 756.

69. Southern R. Co. v. Levy, 144 Ala.
014. :;'j So. 95.

70. Choice between full and limited lia-
bility contract. — Plaintiff, a shipper of
cattle, (iciiuuuic-fl an unrestricted liability
contract of defendant railroad. After the
cattle were loaded and accepted by de-
fendant, to be delivered at a point beyond
its own line, and the train was in the act
of starting, plaintiff was compelled to
sign a contract restricting liability to in-
juries on defendant's line, l)cing refused
an opportunity to ship on unrestricted
terms. Held, that the restrictions were
void, anfl no defense, where injury re-
sulted. Chicago, etc., R. Co. v. Cotton,
87 Ark. 330, 112 S. W. 712.



71. Deming v. Merchants', etc.. Stor-
age Co., 90 Tenn. (6 Pickle) 306, 17 S.
W. 89, 13 L. R. A. 518.

72. Knowledge and assent of shipper.
— Illinois. — Merchants', etc., Transp. Co.
V. Moore, 88 111. 136, 30 Am. Rep. 541.

/otca. — Mulligan v. Illinois Cent. R.
Co., 36 Iowa 181, 14 Am. Rep. 514, 2
Am. R. Rep. 322, 328.

Tennessee. — East Tennessee, etc., R.
Co. V. Brumley, 73 Tenn. (5 Lea) 401,
6 Am. & Eng. R. Cas. 356.

73. Alabama. — Jones v. Cincinnati, etc.,
R. Co., 89 Ala. 376, 8 So. 61, 45 Am. &
Eng. R. Cas. 321.

Nezv York. — Where, on receiving a
trunk for transportation, an express com-
pany gives the owner a receipt tliercfor,
containing in explicit terms an agreement
to forward the trunk to the agency of the
company nearest to destination only, and
tiiat the company may there deliver the
trunk to another express company, and
in such case the companj' to which the
trunk is so delivered shall l)e regarded as
the agent of the owner, and liable for
damages or loss thereafter, such contract
is binding on the shipper whetlier lie
reads the receipt or not. Mills t'. Weir,
81 N. Y. S. HOI, S2 ;\pp. Div. 39C).

74. Habit of receiving like bills of lad-
ing. — When a bill ol lading, given by the



3730



CARRIERS.



3350



In such case the carrier need not call the shipper's attention to the stipulation '^^
or read or explain it to him."^

Where Express Contract Required. — In jurisdictions in which a carrier
can limit its liability by express contract only, a stipulation limiting its lia-
bility to losses or damage occurring on its own route, must be shown to have been
brought to the notice of the consignor, and to have been accepted or acquiesced
in by himJ" The mere acceptance, however, of a bill of lading '^^ or of an ex-



carrier on the acceptance of the goods,
shows that they are to be forwarded to
a particular place only, which is short
of their place of destination, and the con-
signor has been a frequent shipper by
the same line, and was in the habit of re-
ceiving like bills of lading, it will be pre-
sumed he was familiar with its contents,
and knew that the carrier was not obliged
to carry the goods to the place to which
they were addressed, and if promptly
carried to the place specified in the con-
tract, and there safely stored, and they
are burned without fault on the part of
the carrier, no recovery can be had of the
latter for the loss. Merchants', etc.,
Transp. Co. v. Moore, 88 111. 136, 30 Am.
Rep. 541.

75. A special contract protecting a
railroad company against liability for
loss of or injury to freight not occurring
on its own line will be presumed from
the fact that a clause purporting to so
limit liability is to be found printed in
tlie l)ill of lading received by the shipper,
even though his attention was not called
to it, if it appears that he had previously
shipped like articles and taken the same
kind of bills of lading. East Tennessee,
etc., R. Co. V. Brumley, 73 Tenn. (5 Lea)
401, 6 Am. & Eng. R. Cas. 35fi.

76. Where plaintiff had been accus-
tomed for many years to ship live stock
over the line of defendant railroad com-
pany under a form of contract making
defendant liable only for loss occurring
on its line, it must be presumed that,
when plaintiff applied to defendant's
agent for a car to ship his stock, he an-
ticipated shipping- it in the usual way;
and though the contract, which was in
the usual form, was not read to him or
explained, it can not be inferred that
there was any fraud or mistake. Rich-
mond, etc., R. Co. 7'. Richardson, 66 S.
W. 103.5. 23 Ky. L. Rep. 2234.

77. Where express contract required. —
.Alabama. — Louisville, etc., R. Co. v.
Meyer, 78 Ala. 597, 27 Am. & Eng. R.
Cas. 44.

Georgia. — Mosher & Co. v. Southern
Exp. Co., 38 Ga. 37; Atlantic, etc.. R.
Co. f. Henderson, 131 Ga. 75, 61 S, E.
1111.

78. Central R., etc., Co. v. Hasselkus,
91 Ga. 382. 17 S. E. 838, 44 Am. St.
Rep. 37.

Where a shipper contracted with a
railroad company to ship freiglit to a
point beyond its terminus, over a cer-



tain route, at a given price, and delivered
the freight to the railroad company, and
afterwards a bill of lading was sent to
the shipper, the liability of the railroad
company was that of a common carrier
to transport the freight from the initial
point to its destination; and it could not
limit its liability by inserting in the bill
of lading a provision that for all loss or
damage occurring in the transit the legal
remedy should be sought and held only
against the particular carrier in whose
custody the freight might be at the time
thereof, there being no express contract
to that effect, the bill of lading being
signed only by the agent of the company,
and not having been agreed to by the
shipper. Central R. Co. t'. Dwight Mfg.
Co.. 75 Ga. 609.

When the agent of a carrier receipts
for goods destined to a point beyond its
line of transportation, such receipt con-
taining the following words, "which it is
mutually agreed is to be forwarded to
our agents nearest or most convenient
to destination only, and there delivered
to other parties, to complete the trans-
portation," the company can not, in case
of loss of the goods, protect it>^elf from
liability by showing that its line of trans-
portation did not extend to the point for
which the goods were destined, espe-
cially when the evidence shows that this
fact was not known by or communicated
to the shipper at the time he shipped the
goods. Mosher & Co. z'. Southern Exp.
Co., 38 Ga. 37.

Plaintiff applied to an agent of the R.
I. & P. R. Co., at one of its stations, to
ship a stove to K. on the line of defend-
ant's road. The agent informed plain-
tiff that the custom was for shippers to
release stoves, but advised him not to do
it, but to pay the additional expense of
sending it at carrier's risk. To this
plaintiff assented, and offered to pay the
freight to said agent, who informed him
that he could as well pay it at the end of
the route. The agent placed the goods
in a car of a freight train. Some hours
afterwards the agent handed him a p^i-
per, saying that it was a receipt for the
goods shipped. This paper plaintiff put
in his pocket, without examining it, and
which proved to be a bill of lading of
the goods containing inter alia the condi-
tion. "Stoves at owner's risk of break-
age." The goods were received at C. B.
from the R. I. & P. R. Co. by defendant
railroad company, and carried to K.



3351 LIMITATION OF LIABILITY. §§ 3730-3731

press receipt"^ does not, in such case, establish the shipper's assent to stipulations
of this kind. And in Illinois a carrier accepting goods for shipment to a point
beyond its own line can not limit its liability for their safe delivery at their desti-
nation by a stipulation in the bill of lading not signed by the shipper, nor as-
sented to by him.^"'

Conflict of Laws. — A contract made by a railroad company in Georgia for
the through carriage of freight from Savannah to Chattanooga, Tenn., is gov-
erned by the statutes of Georgia; and under Civ. Code 1895, § 2276, providing
that a carrier can only limit its legal liability by express contract, as construed by
the courts of the state, a provision of the bill of lading that the railroad should
only be liable for the safe delivery of the goods to its connecting carrier is with-
out etlect to relieve it from liability for damage to the goods while in the posses-
sion of the connecting carrier, unless such bill of lading is signed by the shipper. ^^

§§ 3731-3743. Construction, Operation and Effect— § 3731. Con-
struction of Words and Phrases. — Term "Carrier." — Where a bill of lading
provides that "no carrier shall be liable for loss or damage not accruing on its
portion of the route, nor after said property is ready for delivery to the con-
signee ;" the stipulation being intended to qualify or limit the common-law lia-
bility and therefore to be strictly construed against the carrier and in favor of
the shipper, the term "carrier" should be taken as referring, not merely to the
transportative capacity of the company, but to the contracting entity in its dual
capacity of common carrier and warehouseman.'^- The stipulation so construed,
being one undertaking to contract against liability for loss, however negligently
it might be inflicted, was void.^^

"Forwarding- Carrier." — In a bill of lading stipulating that the liability of
a forwarding carrier for loss shall cease on delivery to the connecting carrier,
and that of a delivering carrier on delivery at the station of delivery, the term
"forwarding carrier" applies to all carriers who transport goods to the delivering
carrier, and the term "delivering carrier" to the carrier who actually delivers the
goods at their destination.^^

"Loss or Damage." — The words "loss or damage,'' in the provision in the
contract of defendant railway company to carry goods to Boston by its own and
specified connecting lines, and of a steamship company to carry the goods
from Boston to Liverpool: "Xo carrier shall be liable for loss or damage not
occurring on its road or its portion of the through route, nor after said property
is ready for delivery to the next carrier. * * * The amount of any loss or
damage for which any carrier becomes liable shall be computed at the value of the

Upon the arrival, the stove was found extended only to the city of Atlanta, es-

to have been broken en route. Held, in pecially when the evidence in the record

an action against the defendant for dam- shows that such fact was not known to

af?es for injury to stove, that the stove the shipper, or communicated to him, at

was carried at carrier's risk. Union Pac. the time of receiving the goods by the

R. Co. V. Marston, 150 Neb. 241, 46 N. W. agent of defendant.' Mosher & Co. v.

4^r,. Southern Exp. Co., 38 Ga. 37.

79. Express receipt— Notice to shipper. 80. Ilhnois Cent. R. Co. v Carter 46

— 'Ihe agent of rkliiulant express com- N. E. 374, 165 111. 570, 36 L R A 527-

pany at Augusta, Ga., receipted for a Illinois Match Co. v. Chicago etc r'

package to the shipper, marked "C. A. Co., 95 N. E. 402. 250 111. 396, 'reversing

Robinson, Cartersville, Ga.," and m the judgment 1.').! 111. App. 568.

printed receipt given by the agent of Q^ n a- ^ c \ r^ , ^

defendant to the shipper the following ^^^- ^^^^^^^ ° ^nTv~?T't' A^^'n ?'

words were inserted: "Which it is mu- f^'?; ^- I^^vanaugh. 92 Fed. o6. 34 C. C. A.

tuaily agreed is to be forwarded to our " oo t ., ^ « • • .

agency nearest or most convenient to 82. Loss not accruing on earner s own

destination only, and there delivered to ^/,"^-~V'l,'' -.i^"'- c ^.".o ''• ^^""'"'^^ '^

other parties, to complete the transpor- *-"■ '■''^ ''^'^- ""• ■*=' ^°- ^■'^•

tation." It was held that in case of loss 83. Central, etc., R. Co. v. Merrill &

of the goods, the defendant express com- Co., 153 Ala. 277, 45 So. 628.

pany was liable therefor, and' could not 84. Forwarding carrier. — P.runk v.

protect itself from its legal lial)ility by Ohio, etc., R. Co., 32 Ky. L. Rep. 174, 105

showing that its line of transportation S. W. 443.



§§ 3731-3735 carriers. 3352

property at place and time of shii)ment" — and according to which chums for
loss or 'damage must be made within a certain time after delivery or time there-
for, are limited to loss of or injury to the property, and do not include damages
for loss of a market because of delay in transportation. ^^

§ 3732. What Law Governs. — The liability of the several connecting car-
riers with respect to loss of freight en route are to be determined by the law as
it was when the contract of shipment was made.^*^

§ 3733. Effect of Stipulation as to Character of Train Service.—

There being no repugnancy between a provision in a freight contract limiting the
carrier's liability to its own line and a stipulation therein for through passage
train service, the fact that the first is printed, while the last is in writing, is im-
material in construing the contract.^'

§§ 3734-3736. Carriers Entitled to Benefit— § 3734. Liability Lim-
ited to Carrier's Own Line.— Destination on Line of Contracting Carrier.

— Where the destination of the shii)ment is not beyond the line of the contracting
carrier, a provision in the contract limiting the liability of the carrier after de-
livery to a succeeding carrier had no application, although the contracting carrier
had to transport the shipment over another line before reaching its own.'"'"^

Goods to Be Carried Over Line Operated by Contracting Carrier.—
Where a through bill of lading given by the R. & D. Ry. Co. provided that its
liability for the safe carriage of the goods should be limited to the time the goods
were on the line or at the stations of the R. & D. Co. and the C. & A. Co.'s rail-
road, on which line the delay happened, was operated by the R. & D. Co. and the
goods w^ere not to be carried over the R. & D. Co.'s line proper at all; the R. &
D. Co. was liable for damages caused by the delay. ^^

§ 3735. Liability Limited to Line Having Custody of Goods.— A pro-
vision in a contract for the shipment of goods over several connecting lines, that
in case of loss or damage that road in wdiose actual custody the goods are at the
time of the loss or damage shall alone be responsible, inures to the benefit of an
intermediate carrier which delivers the goods safely to the next succeeding car-



rier



90



85. "Loss or damage." — Johnson v. was carried by another line part of the
Missouri, etc., R. Co., 95 N. Y. S. 182, 107 distance, and while being transported by
App. Div. 374. the connecting line it was injured. The

86. What law governs. — Central, etc., bill of lading provided that, if the desti-
R. Co. V. Chicago Varnish Co., 169 Ala. nation of the cars should be beyond the
287. 53 So. 832. line of the contracting carrier's road, it

87. Effect of stipulation as to character should deliver to a connecting carrier at
of train service. — Colfax Mountain Fruit the end of its line; that the duty and lia-
Co. V. Southern Pac. Co. (Cal.), 46 Pac. bility of the company, as well as that of
558. each connecting carrier, should cease

Under Civ. Code, § 2201, declaring that upon delivery to a connecting carrier;

the liability of a carrier who accepts and that each succeeding carrier should

freight for a place beyond his route only be liable for loss or injury occur-

ceases on delivery to a connecting line, ring on its own line. Held that, the des-

"unless he stipulates otherwise," a provi- lination of the cars being not beyond the

sion in a freight contract that the car- line of the contracting carrier, the provi-

rier's responsibility shall cease at the sion as to limitation of liability had no

connecting point is not rendered inefifect- application. St. Louis, etc., R. Co. v.

ive by a further stipulation for through Kilberry, 83 Ark. 87, 102 S. W. 894.

passenger train service. Colfax Moun- 89. Goods to be carried over line oper-

tain Fruit Co. v. Southern Pac. Co. ated by contracting carrier. — Van Lind-

(Cal.), 46 Pac. 668. ley v. Richmond, etc., R. Co., 88 N. C.

88. Destination on line of connecting 547.

carrier. — A railroad company accepted 90. Liability limited to line having cus-

several cars of stock foi shipment from tody of goods. — Bird f. Railroads. 99

St. Louis, to a point on its line. As it Tenn. (15 Pickle) 719, 42 S. W. 451, 63

had no line out of St. Louis, the stock Am. St. Rep. 856.



3353



LIMITATION OF LIABILITY.



§§ 3736-3737



§ 3736. Emirement to Benefit of Subsequent Carrier. — See post,



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