whether this knowledge be gained from outside sources, or whether the appearance of the goods reasonably suggests their real value. The failure of the shipper to state what the carrier already knows. does not, of course, deceive the carrier; while the carrier, knowing the real value, should not be permitted, even partially, to escape full liability for his negligent acts.

80

The stipulation in question is of particular importance in express receipts, as the goods sent by express are usually of comparatively great value in proportion to their bulk.

Stipulations Limiting Recovery to Value of Goods at Time and Place of Shipment

In many bills of lading a stipulation is found providing that, in case of loss even by negligence, the value of the goods at the time and place of shipment shall constitute the measure of damages which the shipper may recover. The usual measure of damages, as we shall see,311 when the goods are lost, is their value at their destination at the time the goods should have arrived in good condition. Such stipulations, though repudiated by some courts,32 have for the most part been sustained as both reasonable and valid.33

These stipulations do not seek, in case of loss by negligence, to limit the carrier's liability to an amount less than the value of the goods. They simply specify the time and place at which this value shall be reckoned. The value of the goods at the destination is ordinarily greater than at the place of shipment, since this usually

Wells Fargo & Co., 93 Minn. 143, 100 N. W. 735; Orndorff v. Adams Exp. Co., 3 Bush. (Ky.) 194, 96 Am. Dec. 207; Kember v. Southern Exp. Co., 22 La. Ann. 158, 2 Am. Rep. 719; Southern Exp. Co. v. Crook, 44 Ala. 468, 4 Am. Rep. 140. There are cases, however, holding this stipulation valid in spite of the carrier's knowledge of a real value far exceeding the stipulated amount. See George N. Pierce Co. v. Wells Fargo & Co., 189 Fed. 561, 110 C. C. A. 645; D'Arcy v. Adams Exp. Co., 162 Mich. 363, 127 N. W. 261.

30 This is indicated by the mere titles of the cases. See, for example, the cases cited in the preceding note.

31 Post, § 160.

32 Illinois Cent. R. Co. v. Bogard, 78 Miss. 11, 27 South. 879; McConnell Bros. v. Southern R. Co., 144 N. C. 87, 56 S. E. 559; Southern Pac. Ry. Co. v. D'Arcais, 27 Tex. Civ. App. 57, 64 S. W. 813; Ruppel v. Allegheny Valley Ry., 167 Pa. 166, 31 Atl. 478, 46 Am. St. Rep. 666.

33 Gratiot St. Warehouse Co. v. Missouri, K. & T. R. Co., 124 Mo. App. 545, 102 S. W. 11; Inman & Co. v. Seaboard Air Line R. Co. (C. C.) 159 Fed. 960; Merchants' & Miners' Transp. Co. v. Eichberg, 109 Md. 211, 71 Atl. 993, 130 Am. St. Rep. 524; MATHESON v. SOUTHERN RY., 79 S. C. 155, 60 S. E. 437, Dobie Cas. Bailments and Carriers, 290; Zouch v. Chesapeake & O. Ry. Co., 36 W. Va. 524, 15 S. E. 185, 17 L. R. A. 116; Pierce v. Southern Pac. Co., 120 Cal. 156, 47 Pac. 874, 52 Pac. 302, 40 L. R. A. 350; Squire v. New York Cent. R. Co., 98 Mass. 239, 93 Am. Dec. 162; Tibbits v. Rock Island & P. Ry. Co.,. 49 Ill. App. 567.

supplies the reason for the shipment, and some courts on this ground have considered these stipulations in the light of contracts attempting to limit the carrier's liability for negligent loss.3* The courts upholding these contracts lay stress on the advantage and convenience, as to proof, in thus fixing a definite time and place as of which the value of the goods is to be reckoned.35

Even by these courts, upholding the validity of such stipulations, these stipulations are limited to loss or injury by the carrier, whether with or without negligence. They do not apply when the carrier is guilty of a conversion of the goods.30

Effect of Agreed Valuation in Cases of Injury or Partial Loss

Another question involving cordial disagreement on the part of the courts arises when, in cases of agreed valuation, the goods are injured or a part of the shipment is lost. The difficulty lies in determining the measure of recovery in such cases. According to some courts, the shipper recovers the full amount of damage suffered up to the amount of the agreed valuation, on the theory that the valuation fixes merely the limit of recovery, and that the shipper recovers all damage actually incurred, provided it does not exceed the valuation fixed.37 The doctrine of another line of authorities is that the shipper recovers only that proportion of the actual damage which the agreed valuation bears to the actual value of the goods.38 The latter rule is believed to be preferable, since it is in better accord with the theory of a real valuation accepted by the carrier as such.

SAME LIMITATIONS AS TO TIME AND MANNER OF PRESENTING CLAIMS

134. The carrier may by contract require that claims for damages be presented in a certain manner and within a specified time, and this contract will be valid, provided such stipulations as to time and manner be reasonable.

84 See cases cited in note 32.

35 See cases cited in note 33.

36 Erie Dispatch v. Johnson, 87 Tenn. 490, 11 S. W. 441; Shelton v. Canadian Northern R. Co. (C. C.) 189 Fed. 153.

37 Michalitschke Bros. & Co. v. Wells, Fargo & Co., 118 Cal. 683, 50 Pac. 847; Nelson v. Great Northern R. Co., 28 Mont. 297, 72 Pac. 642; Brown v. Cunard S. S. Co., 147 Mass. 58, 16 N. E. 717; Visanska v. Southern Exp. Co., 92 S. C. 573, 75 S. E. 962.

38 O'Malley v. Great Northern Ry. Co., 86 Minn. 380, 90 N. W. 974; United States Exp. Co. v. Joyce, 36 Ind. App. 1, 69 N. E. 1015; Shelton v. Canadian Northern R. Co. (C. C.) 189 Fed. 153; Goodman v. Missouri, K. & T. Ry. Co., 71 Mo. App. 460; Greenfield v. Wells Fargo & Co. (Sup.) 134 N. Y. Supp. 913.

Such stipulations have nothing to do with limiting the carrier's liability for negligence." They do not even attempt to limit the amount for which the carrier may be held responsible. The purpose of this stipulation is to give the carrier notice of the claim. at a time when it is still fresh, and when the carrier may by diligent inquiry learn the facts and circumstances surrounding such claim. The difficulties of such an inquiry increase tremendously when it is started long after the loss or injury upon which the claim is based. Especially is this true of a carrier daily engaged in hundreds or thousands of similar transactions.

40

In order that such a stipulation may be valid, however, the time in which the claim can be presented must be reasonable." If the time stipulated is unreasonable, then the stipulation is of no effect.*2 What is a reasonable time is a relative question, depending on the circumstances of each particular case. Thus, thirty hours after

39 Liquid Carbonic Co. v. Norfolk & W. R. Co., 107 Va. 323, 58 S. E. 569, 13 L. R. A. (N. S.) 753; Cooke v. Northern Pac. R. Co., 22 N. D. 266, 133 N. W. 303.

40 See cases cited in note 41. "This is a very reasonable and proper provision, to enable the defendants, while the matter is still fresh, to institute proper inquiries and furnish themselves with evidence on the subject. The defendants do a large business, and to allow suits to be brought against them, without such notice, at any length of time, would be to surrender them, bound hand and foot, to almost every claim which might be made. It would be next to impossible, when a thousand packages, large and small, are forwarded by them daily, to ascertain anything about the loss of one of them, at a distance of six months or a year." Weir v. Express Co., 5 Phila. (Pa.) 355.

41 Deaver-Jeter Co. v. Southern Ry., 91 S. C. 503, 74 S. E. 1071, Ann. Cas. 1914A, 230; St. Louis & S. F. R. Co. v. Phillips, 17 Okl. 264, 87 Pac. 470; Pennsylvania Co. v Shearer, 75 Ohio St. 249, 79 N E. 431, 116 Am. St. Rep. 730, 9 Ann. Cas. 15; The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419; Engesether v. Great Northern Ry. Co., 65 Minn. 168, 68 N. W. 4; St. Louis & S. F R. Co. v Hurst, 67 Ark. 407, 55 S. W. 215; Gulf, C. & S. F. Ry. Co. v Trawick, 68 Tex. 314, 4 S. W. 567, 2 Am. St. Rep. 494; Southern Exp. Co. v. Hunnicutt, 54 Miss. 566, 28 Am. Rep. 385; SOUTHERN EXP. CO. V. CALDWELL, 21 Wall. 264, 22 L. Ed. 556, Dobie Cas. Bailments and Carriers, 226; Weir v. Express Co., 5 Phila. (Pa.) 355; U. S. Exp. Co. v. Harris, 51 Ind. 127; Southern Exp. Co. v. Glenn, 16 Lea (Tenn.) 472, 1 S. W. 102; Lewis v. Railroad Co., 5 Hurl. & N. (Eng.) 867. Similar stipulations contained in insurance policies are sustained. Steen v. Niagara Fire Ins. Co., 89 N. Y. 315, 42 Am. Rep. 297. Likewise in telegraph contracts. Cole v. Western U. Tel. Co., 33 Minn. 227, 22 N. W. 385.

42 Dixie Cigar Co. v. Southern Express Co., 120 N. C. 348, 27 S. E. 73, 58 Am. St. Rep. 795; Central Vermont R. Co. v. Soper, 59 Fed. 879, 8 C. C. A. 341: Southern Exp. Co. v. Bank of Tupelo, 108 Ala. 517, 18 South. 664; Osterhoudt v. Southern Pac. Co., 47 App. Div. 146, 62 N. Y. Supp. 134; Norfolk & W. Ry. Co. v. Reeves, 97 Va. 284, 33 S. E. 606.

43 This is usually a question of fact for the jury. Kansas & A. V. R. Co.

delivery was in one case held reasonable; while thirty days from the date of the bill of lading was in another case held unreasonable. A stipulation requiring a consignee of cattle to present any claim for damages at the time of the receipt of the cattle, and before: they are unloaded and mingled with other cattle, was held reasonable and valid. But a stipulation requiring goods to be examined

46

v. Ayers, 63 Ark. 331, 38 S. W. 515; St. Louis & S. F. R. Co. v. Phillips, 17 Okl.. 264, 87 Pac. 470; International & G. N. Ry. Co. v. Garrett, 5 Tex. Civ. App. 540, 24 S. W. 354. The following periods have been held reasonable: Ninety days, SOUTHERN EXP. CO. v. CALDWELL, 21 Wall. 264, 22 L. Ed. 556, Dobie Cas. Bailments and Carriers, 226. Thirty days, Hirshberg v. Dinsmore, 12 Daly (N. Y) 429; Smith v. Dinsmore, 9 Daly (N. Y.) 188; Kaiser v. Hoey (City Ct. N. Y.) 1 N. Y. Supp. 429; Southern Exp. Co. v. Hunnicutt, 54 Miss. 566, 28 Am. Rep. 385; Glenn v. Southern Exp. Co., 86 Tenn. 594, 8 S. W. 152; Weir v Express Co., 5 Phila. (Pa.) 355. Five days, Chicago & A. R. Co. v. Simms, 18 Ill. App. 68; Dawson v. St. Louis, K. C. & N. Ry. Co., 76 Mo. 514. Sixty days, Thompson v Chicago & A. R. Co. 22 Mo. App. 321. Seven days, Lewis

v. Railway Co., 5 Hurl & N (Eng.) 867. The following periods have been held unreasonable: Sixty days from date of contract, Pacific Exp. Co. v. Darnell (Tex.) 6 S. W 765. Thirty days from date of contract, Adams Exp. Co. v. Reagan, 29 Ind. 21, 92 Am. Dec. 332, Southern Exp. Co. v. Caperton, 44 Ala. 101, 4 Am. Rep. 118. Where the period is fixed without reference to the time of loss or length of journey, it is unreasonable. Porter v. Southern Exp. Co., 4 S. C. 135, 16 Am. Rep. 762; Southern Exp. Co. v. Caperton, 44 Ala. 101, 4 Am. Rep. 118. But see SOUTHERN EXP. CO. v. CALDWELL, 21 Wall. 264, 22 L. Ed. 556, Dobie Cas. Bailments and Carriers, 226; and cf. Central Vermont R. Co. v. Soper, 8 C. C. A. 341, 59 Fed. 879. Stipulation, in a contract for carriage of freight, that as a condition to recovery for injury to the property the carrier shall be given notice within a certain time of claim for damages, must be reasonable, and whether it is reasonable, where the notice is required to be given within a day after delivery at destination, is a question for the jury; the stock shipped having arrived at 2 p. m., there having been no agent at such station, and the nearest agent to whom notice might have been given having been 35 miles away. St. Louis, I. M. & S. R. Co. v. Furlow, 89 Ark. 404, 117 S. W. 517. Where shippers had ample time and opportunity to notify the carriers of damage to cotton which occurred before ocean transportation began, a provision in the bills of lading requiring notice of damage within 30 days after delivery of the cotton at destination was not unreasonable. Inman & Co. v. Seaboard Air Line R. Co. (C. C.) 159 Fed. 960. A provision of a bill of lading that the carrier should not be liable in any suit to recover for loss or damage to the property, unless suit was brought within one year, was reasonable. Ingram v. Weir (C. C.) 166 Fed. 328.

44 St. Louis & S. F. R. Co. v. Hurst, 67 Ark. 407, 55 S. W. 215. 45 Southern Exp. Co. v. Bank of Tupelo, 108 Ala. 517, 18 South. 664. 46 Rice v. Kansas Pac. Ry., 63 Mo. 314; Sprague v. Missouri Pac. Ry. Co., 34 Kan. 347, 8 Pac. 465; Owen v. Louisville & N. R. Co., 87 Ky. 626, 9 S. W. 698; Wood v. Southern Ry. Co., 118 N. C. 1056, 24 S. E. 704; Western Ry. Co. v. Harwell, 91 Ala. 340, 8 South. 649. This is held reasonable, in order that the carrier may inform himself as to these injuries before the injured cattle are no longer capable of identification.

47

before leaving the station, as applied to a car load of cotton, was held not to be reasonable. So, likewise, a contract regulating the manner of presenting claims is valid, provided it is reasonable.48 For example, a contract requiring notice of loss to be made in writing, or at the place of shipment, is valid.50 These limitations as to time or manner may, of course, be waived by the carrier."1

49

47 Capehart v. Seaboard & R. R. Co., 81 N. C. 438, 31 Am. Rep. 505. See, also, Owen v. Louisville & N. R. Co., 87 Ky. 626, 9 S. W. 698; Rice v. Kansas Pac. Ry., 63 Mo. 314; Sprague v. Missouri Pac. Ry. Co., 34 Kan. 347, 8 Pac. 465. Such a stipulation does not apply to latent injuries, which could not be discovered at the time of delivery. Ormsby v. Union Pac. R. Co. (C. C.) 4 Fed. 170; Id. (C. C.) 4 Fed. 706; Capehart v. Seaboard & R. R. Co., 77 N. C. 355.

48 A requirement that the claim be verified by affidavits is valid. Black v. Wabasha, St. L. & P. Ry. Co., 111 Ill. 351, 53 Am. Rep. 628. Cf. International & G. N. Ry. Co. v. Underwood, 62 Tex. 21. Notice in writing to a particular officer may be required. Dawson v. St. Louis, K. C. & N. Ry. Co., 76 Mo. 514. Cf. Baltimore & O. Exp. Co. v. Cooper, 66 Miss. 558, 6 South. 327, 14 Am. St. Rep. 586.

49 Hirshberg v. Dinsmore, 12 Daly (N. Y.) 429; Chicago & A. R. Co. v. Simms, 18 Ill. App. 68. But see Smitha v. Louisville & N. R. Co., 86 Tenn. 198, 6 S. W. 209. The filing of suit and service of citation are sufficient to meet requirements of a shipping contract whereby the shipper agrees to give definite notice in writing of his claim to the carrier within a certain time after date of injury. Houston & T. C. R. Co. v. Davis, 50 Tex. Civ. App. 74, 109 S. W. 422.

50 The requirement is waived where the carrier has no officer at the place named to whom notice could be given. Missouri Pac. Ry. Co. v. Harris, 67 Tex. 166, 2 S. W. 574.

51 Chicago & E. I. R. Co. v. Katzenbach, 118 Ind. 174, 20 N. E. 709; Rice v. Kansas Pac. Ry., 63 Mo. 314; Owen v. Louisville & N. R. Co. (Ky.) 9 S. W. 841; Hudson v. Northern Pac. Ry. Co., 92 Iowa, 231, 60 N. W. 608, 54 Am. St. Rep. 550. Receipt and consideration of an unverified claim is a waiver of a stipulation requiring a verified one. Wabash Ry. Co. v. Brown, 152 Ill. 484, 39 N. E. 273. See, also, Bennett v. Northern Pac. Exp. Co., 12 Or. 49, 6 Pac. 160. Where a bill of lading contains a provision that claims for loss or damage must be made in writing within 30 days, this provision is waived where the railroad company deliberated on a claim made after the expiration of the thirty days, and placed its refusal to pay the claim on the merits. Isham v. Erie R. Co., 191 N. Y. 547, 85 N. E. 1111, affirming 112 App. Div. 612, 98 N. Y. Supp. 609. A provision of a bill of lading requiring any claim for loss or damage to be made in writing within 30 days after delivery was waived where no objection was raised on that ground to a claim filed after that time. Merchants' & Miners' Transp. Co. v. Eichberg, 109 Md. 211, 71 Atl. 993, 130 Am. St. Rep. 524. Though a contract of shipment requires written notice of claim for damages to be made within 30 days, a notice is unnecessary where the carrier's agent attended the opening of the car with the consignee, listed the damaged goods and made report thereof to the carrier, who entered upon an investigation of the damages, and did not object to the form of notice. Nairn v. Missouri, K. & T. R. Co., 126 Mo. App. 707, 106 S. W. 102. Where a carrier without objection to the form of notice receives and acts on an