it could not be said that the shipper had freely and voluntarily entered into the contract. If the carrier had a right to force the shipper into a contract limiting liability or else refuse to carry the goods, then the element of choice on the part of the shipper, from which such contracts derive their binding force, would be utterly lacking. But when the carrier offers the shipper the alternative of full responsibility at the full price, or reduced responsibility at a reduced price, and the shipper, after weighing the comparative advantages of the two schemes, voluntarily accepts the latter, then clearly there is the freest choice.

Accordingly, when the carrier refuses to carry the goods unless the shipper accepts a contract of limited liability, this contract would not then be binding on the shipper, though he sent his goods under it."2 Nor, in such a case, would it be a defense for the carrier to say that the shipper could have declined to ship the goods and sued the carrier for his refusal to carry." When, however, the option really existed, it is not essential that, in each case, the carrier must expressly offer to the shipper his choice of the two liabilities with the attendant difference in rates. As has already been seen, for the full insuring responsibility, the carrier cannot charge more than is reasonable under the circumstances.75

SAME

CONSTRUCTION OF THE CONTRACT

127. Contracts limiting the common-law liability of the carrier of goods are to be construed strictly against the carrier.

Perhaps it should first be indicated that the common carrier of goods does not lose his character as such merely by means of con

72 Stewart v. Cleveland, C., C. & St. L. Ry. Co., 21 Ind. App. 218, 52 N. E. 89; Kimball v. Rutland & B. R. Co., 26 Vt. 247, 62 Am. Dec. 567; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Pacific Exp. Co. v. Wallace, 60 Ark. 100, 29 S. W. 32; Atchison, T. & S. F. R. Co. v. Mason, 4 Kan. App. 391, 46 Pac. 31.

78 Little Rock & Ft. S. Ry. Co. v. Cravens, 57 Ark. 112, 20 S. W. 803, 18 L. R. A. 527, 38 Am. St. Rep. 230. Such op

74 Louisville & N. Ry. Co. v. Sowell, 90 Tenn. 17, 15 S. W. 837. tion must be real, however, and not merely colorable. Illinois Cent. R. Co. v. Craig, 102 Tenn. 298, 52 S. W. 164; Little Rock & Ft. S. Ry. Co. v. Cravens, 57 Ark. 112, 20 S. W. 803, 18 L. R. A. 527, 38 Am. St. Rep. 230. Where a carrier did not refuse to transport freight, except under a special contract limiting liability for gross negligence, and then only to the extent of a valuation fixed in the contract, but such contract was thoroughly discussed before executed, and no objection was made to it by the shipper, who inserted in the contract in his own handwriting the valuation on the property, the contract was not imposed on the shipper and the carrier's liability was as fixed by it. Mering v. Southern Pac. Co., 161 Cal. 297, 119 Pac. 80.

15 See ante, pp. 284, 319; post, § 147.

tracts limiting his liability." These contracts do not serve to rid the carrier of his public employment, and he remains as before a common and not a private carrier. This is none the less true, though the liability of the common carrier has been, as to the particular shipment, so reduced by contract as to correspond exactly to the liability of a private carrier."

Contracts limiting liability are by the courts uniformly construed against the carrier." All doubts and ambiguities will be resolved in favor of the shipper; and when the contract is capable of two meanings, the courts incline to the one least beneficial to the carrier. Specific exemptions will not be enlarged by the use of general language in the same connection. For example, a release from liability for loss arising from “leakage or decay, chafing or breakage, or from any other cause," does not exempt the carrier from lia

76 Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129, 31 N. E. 781, 17 L. R. A. 339, 32 Am. St. Rep. 239; Crawford v. Southern Ry. Co., 56 S. C. 136, 34 S. E. 80; Liverpool & G. W. S. Co. v. Phoenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788; Gaines v. Union Transp. & Ins. Co., 28 Ohio St. 418; Hull v. Chicago, St. P., M. & O. Ry. Co., 41 Minn. 510, 43 N. W. 391, 5 L. R. A. 587, 16 Am. St. Rep. 722.

77 See cases cited in preceding note.

78 Magnin v. Dinsmore, 56 N. Y. 168; Edsall v. Camden & A. R. & Transp. Co., 50 N. Y. 661; Hooper v. Wells, Fargo & Co., 27 Cal. 11, 85 Am. Dec. 211; Levering v. Union Transp. & Ins. Co., 42 Mo. 88, 97 Am. Dec. 320; Rosenfeld v. Peoria, D. & E. Ry. Co., 103 Ind. 121, 2 N. E. 344, 53 Am. Rep. 500; St. Louis & S. E. Ry. Co. v. Smuck, 49 Ind. 302; Gronstadt v. Witthoff (D. C.) 15 Fed. 265; Marx v. National Steamship Co. (D. C.) 22 Fed. 680: Ayres v. Western R. Corp., 14 Blatchf. 9, Fed. Cas. No. 689; Hoye v. Pennsylvania R. Co., 191 N. Y. 101, 83 N. E. 586, 17 L. R. A. (N. S.) 641, 14 Ann. Cas. 414; Estes v. Denver & R. G. R. Co., 49 Colo. 378, 113 Pac. 1005; E. O. Stanard Milling Co. v. White Line Cent. Transit Co., 122 Mo. 258, 26 S. W. 704; Cream City R. Co. v. Chicago, M. & St. P. Ry. Co., 63 Wis. 93, 23 N. W. 425, 53 Am. Rep. 267; Galloway v. Erie R. Co., 116 App. Div. 777, 102 N. Y. Supp. 25; MYNARD v. SYRACUSE, B. & N. Y. R. CO., 71 N. Y. 180, 27 Am. Rep. 28, Dobie Cas. Bailments and Carriers, 213.

79 Munn v. Baker, 2 Starkie (Eng.) 255. And see Edsall v. Camden & A. R. & Transp. Co., 50 N. Y. 661; Airey v. Merrill, 2 Curt. 8, Fed. Cas. No. 115; Kansas City, M. & B. R. Co. v. Holland, 68 Miss. 351, 8 South. 516; Black v. Goodrich Transp. Co., 55 Wis. 319, 13 N. W. 244, 42 Am. Rep. 713; Little Rock, M. R. & T. R. Co. v. Talbot, 39 Ark. 523. A bill of lading provided 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 consignee." Held that, the stipulation being intended to qualify or limit the common-law liability 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 warehouseCentral of Georgia Ry. Co. v. Merrill & Co., 153 Ala. 277, 45 South. Clauses in a bill of lading, exempting the carrier from liability for

man.

628.

bility for loss by fire. An exemption from liability for loss through any particular cause does not include losses of that character due to the carrier's negligence.81

For this rule of construction as to such contracts, two reasons are usually given: An ambiguity in a written contract is ordinarily resolved against the person who made it possible; that is, the one who drew the contract and determined in what language it should be couched. The contract limiting liability is usually, as has been seen, embodied in the bill of lading drawn by, and pri

delay in transportation arising from specified causes, did not relieve it, when delay occurred, from the obligation which it assumed to re-ice a refrigerator car from point of shipment to destination. Geraty v. Atlantic Coast Line R. Co., 81 S. C. 367, 62 S. E. 444. A clause in a bill of lading, providing that no carrier or party in possession of all or any of the property shall be liable for any loss thereof or damage thereto by fire, was applicable only in case the carrier at the time of the fire which destroyed the goods was "in possession" thereof. Bolles v. Lehigh Valley R. Co., 159 Fed. 694, 86 C. C. A. 562. Deviation by a carrier from the route described in the contract of shipment makes him liable as an insurer of the goods shipped, though the contract of shipment exempts him from liability under the circumstances under which the goods were lost or damaged. McKahan v. American Express Co., 209 Mass. 270, 95 N. E. 785, 35 L. R. A. (N. S.) 1046, Ann. Cas. 1912B, 612.

80 Menzell v. Chicago & N. W. Ry. Co., 1 Dillon, 531, Fed. Cas. No. 9,429. See, also, Hawkins v. Great Western R. Co., 17 Mich. 57, 97 Am. Dec. 179.

81 Insurance Co. of North America v. Lake Erie & W. R. Co., 152 Ind. 333, 53 N. E. 382; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Ashmore v. Pennsylvania Steam Towing & Transp. Co., 28 N. J. Law, 180; MYNARD v. SYRACUSE, B. & N. Y. R. CO., 71 N. Y. 180, 27 Am. Rep. 28, Dobie Cas. Bailments and Carriers, 213. An exemption from liability for delay does not cover a negligent delay. McKay v. New York Cent. & H. R. R. Co., 50 Hun, 563, 3 N. Y. Supp. 708. General words in a contract of carriage are not sufficient to release a carrier from negligence, but, if such a result is intended, it must be expressly provided for; and hence, where a bill of lading in a shipment of glass contained a condition that defendant would not be liable for damages to glass by breakage or for any cause, if it should be necessary or was usual to carry such property upon open cars, and the words "Loaded and secured by shipper, released," were written upon the face of it, the defendant's liability for negligence remained unaffected. Brewster v. New York Cent. & H. R. R. Co., 145 App. Div. 51, 129 N. Y. Supp. 368. Where a connecting carrier permitted flour to remain in its warehouse for 49 days before forwarding the same because of a shortage of cars, without notifying the shipper, knowing that the detention would be unusual, thereby preventing the shipper from protecting itself by insurance, and the flour was totally or partially destroyed by the burning of the warehouse, the carrier was chargeable with such negligence as made it responsible for the loss of the flour, notwithstanding a provision in the bill of lading that no carrier should be liable for the loss of the goods or damage thereto by fire. Erie R. Co. v. Star & Crescent Mill. Co., 162 Fed. 879, 89 C. C. A. 569.

DOB.BAILM.-25

marily in the interest of, the carrier.82 A second reason is found in the fact that, when the law fixes the measure of the responsibility of one engaged in a public employment, the courts are inclined, if not to regard with disfavor, at least to scrutinize with great nicety and no friendly eye, attempts by the one engaged in such public employment to lessen this responsibility by contract.88

When Contract Inures to Benefit of Connecting Lines

As will be seen hereafter, a common carrier may, by special contract in particular instances, bind himself for transportation over connecting lines to points beyond his own line; and in such a case, he is liable as a carrier for the whole route, even though the loss of, or injury to, the goods occurs on the line of one of the connecting carriers. In the absence of a contract thus extending his liability, the responsibility of the initial carrier is limited to his own line, and ceases entirely when the goods are delivered to the connecting carrier.85

When the initial carrier has by his contract undertaken to transport the goods through to their destination, beyond the end of his line, then the stipulations in the special contract between the shipper and the first carrier inure to the benefit of the connecting carrier. This is upon the theory that since the compensation is fixed

86

82 See Amory Mfg. Co. v. Gulf, C. & S. F. Ry. Co., 89 Tex. 419, 37 S. W. 856, 59 Am. St. Rep. 65: "To no class of contracts has this rule been applied with more stringency than to those in which common carriers seek to limit their liability as it exists at common law."

83 Pierce v. Southern Pac. Co., 120 Cal. 156, 47 Pac. 874, 52 Pac. 302, 40 L. R. A. 350; The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419; Gwyn Harper Mfg. Co. v. Carolina Cent. R. Co., 128 N. C. 280, 38 S. E. 894, 83 Am. St. Rep. 675; Alabama G. S. R. Co. v. Thomas, 89 Ala. 294, 7 South. 762, 18 Am. St. Rep. 119; MYNARD v. SYRACUSE, B. & N. Y. R. CO., 71 N. Y. 180, 27 Am. Rep. 28, Dobie Cas. Bailments and Carriers, 213.

84 Quimby v. Vanderbilt, 17 N. Y. 306, 72 Am. Dec. 469; Hill Mfg. Co. v. Boston & L. R. Corp., 104 Mass. 122, 6 Am. Rep. 202; Bennett v Steamboat Co., 6 C. B. (Eng.) 775; Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. (U. S.) 123, 22 L. Ed. 827. This subject is discussed later at some length. See post, § 145.

85 Miller Grain & Elevator Co. v. Union Pac. Ry. Co., 138 Mo. 658, 40 S. W. 894; Fremont E. & M. V. R. Co. v. Waters, 50 Neb. 592, 70 N. W. 225; Post v. Southern Ry. Co., 103 Tenn. 184, 52 S. W. 301, 55 L. R. A. 481; Harris v. Grand Trunk Ry. Co., 15 R. I. 371, 5 Atl. 305; Seasongood v. Tennessee & O. R. Transp. Co., 54 S. W. 193, 21 Ky. Law Rep. 1142, 49 L. R. A. 270. See post, § 145.

88 Maghee v. Camden & A. R. Transp. Co., 45 N. Y. 514, 6 Am. Rep. 124; Bird v. Southern R. Co., 99 Tenn. 719, 42 S. E. 451, 63 Am. St. Rep. 856; Mears v. New York, N. H. & H. R. Co., 75 Conn. 171, 52 Atl. 610, 56 L. R. A. 884, 96 Am. St. Rep. 192; Kiff v. Atchison, T. & S. F. R. Co., 32 Kan.

with reference to the liability assumed, and since the first carrier is liable for the entire transportation, such carrier has an interest in making the exception commensurate with the scope and duration of the contract, and the connecting lines acting under its employment are entitled as agents of the initial carrier to the benefits of the contract.87 The contract, since it is one providing for through shipment, covers the entire transportation. Hence the diminution of liability is equally effective all through the transit and protects all the carriers, both initial and connecting, engaged in such transit.

When, however, there is no contract for through transportation, since the liability of the initial carrier is limited to its own line, any contract it makes with the shipper prima facie is made for its own protection only, and the security afforded to the carrier under the contract would cease when the carrier's responsibility ceases, namely, when the goods are delivered to the connecting carrier.s The initial carrier, having no interest in the subsequent transportation, is not supposed to have made a contract operative in a transit as to which it receives no benefit and incurs no liability." The

88

263, 4 Pac. 401; Central Railroad & Banking Co. v. Bridger, 94 Ga. 471, 20 S. E. 349; Pittsburg, C., C. & St. L. R. Co. v. Viers, 113 Ky. 526, 68 S. W. 469, 24 Ky. Law Rep. 356; White v. Weir, 33 App. Div. 145, 53 N. Y. Supp. 465. See, also, Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Bird v. Southern R. Co., 99 Tenn. 719, 42 S. W. 451, 63 Am. St. Rep. 856; Kansas City, Ft. S. & M. Ry. Co. v. Sharp, 64 Ark. 115, 40 S. W. 781. The cases are far from clear on this subject, and many conflicting opinions are found.

87 Evansville & C. R. Co. v. Androscoggin Mills, 22 Wall. 594, 22 L. Ed. 724; Manhattan Oil Co. v. Camden & A. R. & Transp. Co., 54 N. Y. 197; Whitworth v. Erie Ry. Co., 87 N. Y. 413; Halliday v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 159, 41 Am. Rep. 309; Levy v. Southern Exp. Co., 4 S. C. 234. Whenever the carrier is bound, by contract or by law, to carry to destination, all carriers who engage in the transportation for any portion of the route are entitled to all the protection which the first carrier has secured by his contract with the shipper. Whitworth v. Erie Ry. Co., supra; Kiff v. Atchison, T. & S. F. R. Co., 32 Kan. 263, 4 Pac. 401. See cases cited in preceding note.

88 Babcock v. Lake Shore & M. S. Ry. Co., 49 N. Y. 491; Merchants' Despatch Transp. Co. v. Bolles, 80 Ill. 473; Bancroft v. Merchants' Despatch Transp. Co., 47 Iowa, 262, 29 Am. Rep. 482; Adams Exp. Co. v. Harris, 120 Ind. 73, 21 N. E. 340, 7 L. R. A. 214, 16 Am. St. Rep. 315; Martin v. American Exp. Co., 19 Wis. 336; Camden & A. R. Co. v. Forsyth, 61 Pa. 81; Etna Ins. Co. v. Wheeler, 49 N. Y. 616; Western & A. R. Co. v. Exposition Cotton Mills, 81 Ga. 523, 7 S. E. 916, 2 L. R. A. 102. See, also, Taylor v. Little Rock, M. R. & T. R. Co., 39 Ark. 148.

* See 1 Hutch. Carr. § 471: "The connecting carrier, in such case, is not only a stranger to the contract, but to its consideration. There can be no presumption that there has been, on his part, any abatement of his charges