attaching to the ordinary bailee for hire. He can agree that, instead of being responsible at all hazards for loss or injury not due to one of the five excepted causes, he shall be liable only when the loss or injury is attributable to his failure to exercise due care. Though there are many practical objections to it, this rule is firmly established, in the absence of statute limiting the right of the carrier thus to restrict his liability by contract.

SAME STIPULATIONS SEEKING TO RELIEVE THE CARRIER FROM LIABILITY FOR NEGLIGENCE

130. The carrier cannot by contract relieve himself from liability for loss or injury due to his negligence, or that of his agents or servants.

The American courts have with substantial unanimity consistently refused to permit the carrier to stipulate against the consequences of his negligence." The public nature of the employment in

2 As we have seen, however (ante, pp. 383-384), the common carrier continues a common carrier, however, even though by his contract he reduces his liability to that of an ordinary bailee.

8 This is apparent even from a casual inspection of the cases cited in note 1. 4 For discussion of statutory regulation of contracts limiting the carrier's liability, see post, § 135.

5 Alabama G. S. R. Co. v Thomas, 89 Ala. 294, 7 South. 762, 18 Am. St. Rep. 119; Pacific Exp. Co. v. Wallace, 60 Ark. 100, 29 S. W. 32; Insurance Co. of North America v. Lake Erie & W. R. Co., 152 Ind. 333, 53 N. E. 382; Louisville & N. R. Co. v. Plummer, 35 S. W. 1113, 18 Ky. Law Rep. 228; Hudson v. Northern Pac. Ry. Co., 92 Iowa, 231, 60 N. W. 608, 54 Am. St. Rep. 550; Cox v. Central Vermont R. Co., 170 Mass. 129, 49 N. E. 97; Ortt v Minneapolis & St. L. Ry. Co., 36 Minn. 396, 31 N. W. 519; McFadden v. Missouri Pac. Ry. Co., 92 Mo. 343, 4 S. W. 689, 1 Am. St. Rep. 721; Pittsburgh, C. C. & St. L. Ry. Co. v. Sheppard, 56 Ohio St. 68, 46 N. E. 61, 60 Am. St. Rep. 732; Willock v. Pennsylvania R. Co., 166 Pa. 184, 30 Atl. 948, 27 L. R. A. 228, 45 Am. St. Rep. 674; Norfolk & W. R. Co. v. Harman, 91 Va. 601, 22 S. E. 490, 44 L. R. A. 289, 50 Am. St. Rep. 855; Liverpool & G. W. S. Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788; Thomas v. Wabash, St. L. & P. R. Co. (C. C.) 63 Fed. 200. See, also, the following recent cases: P. Garvan v. New York Cent. & H. R. R. Co., 210 Mass. 275, 96 N. E. 717; Central of Georgia R. Co. v. City Mills Co., 128 Ga. 841, 58 S. E. 197; St. Louis & S. F. R. Co. v. Phillips, 17 Okl. 264, 87 Pac. 470; Jolliffe v Northern Pac. R. Co., 52 Wash. 433, 100 Pac. 977; Merchants' & Miners' Transp. Co. v. Eichberg, 109 Md. 211, 71 Atl. 993, 130 Am. St. Rep. 524; Inman & Co. v. Seaboard Air Line R. Co. (C. C.) 159 Fed. 960; St. Louis Southwestern R. Co. v. Wallace, 90 Ark. 138, 118 S. W. 412, 22 L. R. A. (N. S.) 379; Checkley v. Illinois Cent. Ry. Co., 257 Ill. 491, 100 N. E. 942, 44 L. R. A. (N. S.) 1127, Ann Cas. 1914A, 1202.

which the carrier is engaged, the tremendous part that he plays in the commercial and economic life of a country, the fact that the carrier and shipper do not stand on a footing of equality as to contracts between them, would require that such contracts, which unquestionably tend to a deterioration in the service of the carrier, should be prohibited by sound public policy. These considerations completely outweigh the sanctity which would otherwise attach. to the freedom of contract between persons who are under no disability.

In New York C. R. Co. v. Lockwood," a leading American case, it was said, as to contracts attempting to relieve the carrier from the consequences of his negligence: "The proposition to allow a public carrier to abandon altogether his obligations to the public, and to stipulate for exemptions that are unreasonable and improper, amounting to an abdication of the essential duties of his employment, would never have been entertained by the sages of the law. * * * And then the inequality of the parties, the compulsion under which the customer is placed, and the obligations of the carrier to the public, operate with full force to divest the transaction of validity."

Anomalous Doctrines of a Few States

While the sound doctrine just stated very generally prevails, this doctrine has been qualified by the peculiar holdings of a few states. Thus, in Illinois, it has been held that the carrier may validly contract for exemption from liability for ordinary negligence, but not for gross negligence. Not only is any attempt to restrict the salutary doctrine, as above outlined, regrettable, but any attempt to distinguish here between grades of negligence is particularly objectionable. The so-called Illinois doctrine has, accordingly, met with scant favor at the hands of the courts of other states.

8

The New York courts recognized a distinction between the carrier's own negligence and that of his servants or agents. The carrier was then permitted to contract against the negligence of his

6 17 Wall. (U. S.) 357, 21 L. Ed. 627.

7 Illinois Cent. R. Co. v. Morrison, 19 Ill. 136; Wabash Ry. Co. v. Brown, 152 Ill. 484, 39 N. E. 274; Chicago & N. W. Ry. Co. v. Calumet Stock Farm, 194 Ill. 9, 61 N. E. 1095, 88 Am. St. Rep. 68. Language to the same effect is found also in Cooper v. Raleigh & G. R. Co., 110 Ga. 659, 36 S. E. 240; Galt v. Adams Exp. Co., MacArthur & M. (D. C.) 124, 48 Am. Rep. 742; Rhodes v. Louisville & N. R. Co., 9 Bush (Ky.) 688.

8 See, particularly, criticism of Christian, J., in Virginia & T. R. Co. v. Sayers, 26 Grat. (Va.) 328. See, also, Alabama G. S. R. Co. v. Thomas, 83 Ala. 343, 3 South. 802; New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Sager v. Portsmouth, S. & P. & E. R. Co., 31 Me. 228, 50 Am. Dec. 659; Wyld v. Pickford, 8 Mees. & W. (Eng.) 442.

servants, but this right was denied as to his own negligence." This distinction is perhaps even more unfortunate, in that it attempts to set at naught a fundamental principle of the law of master and servant, that the master, receiving the benefits of the service, is responsible for the acts of the servant within the scope of his authority. This anomalous New York doctrine, therefore, has gained little currency elsewhere.10

SAME STIPULATIONS LIMITING LIABILITY AS TO AMOUNT RECOVERABLE-IN THE ABSENCE

OF THE CARRIER'S

NEGLIGENCE

131. Stipulations limiting the recovery for loss or damage to a specified amount are clearly valid, in the absence of negligence on the part of the carrier or his servants.

It has already been shown 11 that the carrier may by contract relieve himself from any liability whatsoever not due to negligence. If, then, the carrier in such cases may validly stipulate for a total exemption from responsibility, clearly he can in like manner secure a partial exemption. The greater includes the less, and the carrier's contracts limiting his liability to stated amounts (however short these may fall of the actual loss or injury) are valid as to losses not caused by negligence.12 Such contracts, however,

The argument for this rule is perhaps best stated by Woodruff, J., in French v. Buffalo, N. Y. & E. R. Co., *43 N. Y. 108. See, also, Bissell v. New York Cent. R. Co., 25 N. Y. 442, 82 Am. Dec. 369; Perkins v. New York Cent. R. Co., 24 N. Y. 196, 82 Am. Dec. 281; Wells v. New York Cent. R. Co., 24 N. Y. 181; Smith v. New York Cent. R. Co., 24 N. Y. 222. Later New York cases seem to permit the carrier generally to contract against even his own negligence. Cragin v. New York Cent. R. Co., 51 N. Y. 61, 10 Am. Rep. 559' Zimmer v. New York Cent. & H. R. R. Co., 137 N. Y. 460, 33 N. E. 642.

10 "A carrier who stipulates not to be bound to the exercise of care and diligence seeks to put off the essential duties of his employment. Nor can those duties be waived in respect to his agents or servants, especially where the carrier is an artificial being, incapable of acting except by agents and servants. The law demands of the carrier carefulness and diligence in performing the service, not merely an abstract carefulness and diligence in proprietors and stockholders, who take no active part in the business. To admit such a distinction in the law of common carriers, as the business is now carried on, would be subversive of the very object of the law." Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788. See, also, Gulf, C. & S. F. Ry. Co. v. McGown, 65 Tex. 640.

11 Ante, § 129.

12 Brehme v. Dinsmore, 25 Md. 328; Chesapeake & O. R. Co. v. Beasley, Couch & Co., 104 Va. 788, 52 S. E. 566, 3 L. R. A. (N. S.) 183; Boorman v.

are somewhat rare, as it is usual for the carrier, in stipulating for exemptions in the absence of negligence, to stipulate, as he validly may, for the total exemption already discussed.

SAME-SAME-CARRIER NEGLIGENT-AMOUNT FIXED WITHOUT REGARD TO THE VALUE. OF THE GOODS

132. Limitations of the carrier's liability to a fixed amount, where the loss or injury is due to the carrier's negligence, are invalid when such amount is fixed without regard to the value of the goods.

By the great weight of authority, a stipulation limiting recovery to an arbitrary sum is utterly void, when loss or injury is traceable to the negligence of the carrier.18 Since here the amount is fixed capriciously by the carrier, it is in no way based on the value of the goods shipped, and bears no essential relation to the actual or even probable amount of damage sustained by the shipper, owing to the loss of, or injury to, the goods. As such amount is purely arbitrary, the carrier might, by placing it low enough, practically escape the consequences of his negligence, if such contracts were permissible.

The courts, then, have very generally viewed such contracts as mere attempts by the carrier to exempt himself, to a greater or less degree, from liability for his negligence. These contracts have been accordingly repudiated under the general rule forbidding the carrier from contracting against his negligence, and, when a loss American Exp. Co., 21 Wis. 152; Snider v. Adams Exp. Co., 63 Mo. 376; Louisville & N. R. Co. v. Oden, 80 Ala. 38.

13 Louisville & N. R. Co. v. Wynn, 88 Tenn. 320, 14 S. W. 311; ALAIR v. NORTHERN PAC. R. CO., 53 Minn. 160, 54 N. W. 1072, 19 L. R. A. 764, 39 Am. St. Rep. 588, Dobie Cas. Bailments and Carriers, 215; Gardner v. Southern R. Co., 127 N. C. 293, 37 S. E. 328; Central of Georgia Ry. Co. v. Murphey, 113 Ga. 514, 38 S. E. 970, 53 L. R. A. 720; Woodburn v. Cincinnati, N. O. & T. P. R. Co. (C. C.) 40 Fed. 731; Baltimore & O. S. W. Ry. Co. v. Ragsdale, 14 Ind. App. 406, 42 N. E. 1106; Ruppel v. Allegheny Valley Ry. Co., 167 Pa. 166, 31 Atl. 478, 46 Am. St. Rep. 666; Southern Exp. Co. v. Moon, 39 Miss. 822; Ohio & M. Ry. Co. v. Tabor, 98 Ky. 503, 32 S. W. 168, 36 S. W. 18, 34 L. R. A. 685; Galveston, H. & S. A. Ry. Co. v. Ball, 80 Tex. 602, 16 S. W. 441. See, also, Louisville & N. R. Co. v. Woodford, 152 Ky. 398, 153 S. W. 722; L. & N. Ry. Co. v. Tharpe, 11 Ga. App. 465, 75 S. E. 677. Where there is an arbitrary fixing of value by a carrier, accepting goods for transportation before an inspection and without any regard to their real worth, the assumed valuation may be treated as a mere attempt in advance to limit liability. Central of Georgia Ry. Co. v. Butler Marble & Granite Co., 8 Ga. App. 1, 68 S. E. 775.

or injury occurs attributable to the carrier's negligence, the shipper may, in spite of the stipulation limiting the carrier's liability to an arbitrary amount, recover the full amount of damage that he has suffered by virtue of such negligent loss or injury.14

SAME-SAME-SAME-AGREED VALUATION OF

THE GOODS

133. When the amount fixed is honestly accepted by the carrier as a fair and bona fide valuation of the goods for shipment, then, by the weight of authority, even when loss or injury is caused by the carrier's negligence, there can be no recovery beyond the amount thus fixed.

There is much confusion and conflict in the cases as to the carrier's limiting the amount of his liability for negligent loss or injury by fixing in the contract a specified sum as the value of the goods. It is believed, however, that the rule given in the black letter text is supported by both reason and authority.15 In order that he may determine what precautions and methods of transportation are proper, and in order that he may graduate his charges according to the risk assumed, the carrier is entitled to know the value of the goods he carries. When, therefore, the stipulation is honestly regarded by the carrier as a real valuation of the goods, and he arranges accordingly, it would seem that every consideration of fairness would demand the rule that, however valuable the goods may actually be, the liability of the carrier, even for.

14 See cases cited in preceding note.

15 Hart v. Pennsylvania Ry. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717; Doyle v. Baltimore & O. R. Co. (C. C.) 126 Fed. 841; Louisville & N. R. Co. v. Sherrod, 84 Ala. 178, 4 South. 29; Western Ry. Co. v. Harwell, 91 Ala. 340, 8 South. 649; Coupland v. Housatonic R. Co., 61 Conn. 531, 23 Atl. S70, 15 L. R. A. 534; Russell v. Pittsburgh, C., C. & St. L. Ry. Co., 157 Ind. 311, 61 N. E. 678, 55 L. R. A. 253, 87 Am. St. Rep. 214; Graves v. Lake Shore & M. S. R. Co., 137 Mass. 33, 50 Am. Rep. 282; O'Malley v. Great Northern Ry. Co., 86 Minn. 380, 90 N. W. 974; Ballou v. Earle, 17 R. I. 441, 22 Atl. 1113, 14 L. R. A. 433, 33 Am. St. Rep. 881; Ullman v. Chicago & N. W. R. Co., 112 Wis. 150, 88 N. W. 41, 88 Am. St. Rep. 949; ADAMS EXP. CO. v. CRONINGER, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, Dobie Cas. Bailments and Carriers, 228; American Silk Dyeing & Finishing Co. v. Fuller's Exp. Co., 82 N. J. Law, 654, 82 Atl. 894. Some cases, however, refuse to permit such valuation and grant a full recovery of damages suffered by the carrier's negligence. Kansas City, St. J. & C. B. R. Co. v. Simpson, 30 Kan. 645, 2 Pac. 821, 46 Am. Rep. 104; Hughes v. Pennsylvania R. Co., 202 Pa. 222, 51 Atl. 990, 63 L. R. A. 513, 97 Am. St. Rep. 713; Cincinnati, N. O. & T. P. Ry. Co. v. Graves, 52 S. W. 961, 21 Ky. Law Rep. 684.