Congress, by the Hepburn Act and the Carmack Amendment in 1906,
has regulated the subject of interstate transportation of property
by federal law to the exclusion of the states to control it by
their own policy or legislation.
Pennsylvania v. Hughes,
191 U. S. 477,
distinguished, having been decided prior to the passage of the
Hepburn Act.
Page 233 U. S. 98
Knowledge of the shipper that the rate is based on value is to
be presumed from the terms of the bill of lading and of the
published schedules filed with the Interstate Commerce Commission,
and the effect of so filing the schedules makes the published rates
binding upon shipper and carrier alike.
The limitation of liability of carriers for passengers' baggage
is covered by the Interstate Commerce Act and the Carmack Amendment
to the Hepburn Act applies thereto as well as to liability for
shipments of freight.
Under § 6 of the Interstate Commerce Act, carriers must include
in the schedules of rates filed regulations affecting passengers'
baggage and the limitations of liability.
A provision in a tariff schedule that the passenger must declare
the value of his baggage and pay stated excess charges for excess
liability over the stated value to be carried free is a regulation
within the meaning of §§ 6 and 22 of the Interstate Commerce Act,
and as such is sufficient to give the shipper notice of the
limitation.
In construing a statute, the practical interpretation given to
it by the administrative body charged with its enforcement is
entitled to weight:
The effect of permitting the carrier to file regulations as to
passengers' baggage which limit its liability except on payment of
specified rates is not to change the common law rule that the
carrier is an insurer against its own negligence, but simply that
the carrier shall obtain commensurate compensation for the
responsibility assumed.
Where charges for full liability as specified in the published
tariff are unreasonable, they can only be attacked before the
Interstate Commerce Commission.
Congress is familiar with the customs of travelers, including
that of checking baggage, and so
held that a baggage check
is sufficient compliance as to passengers' baggage with the
provision in the Carmack Amendment for issuing a receipt or bill of
lading for the shipment.
If the subject needs regulation, it is within the power of the
Interstate Commerce Commission, under §§ 1 and 15 of the Act of
June 18, 1910, to make requirements as to checks or receipts to be
given for baggage by common carriers.
209 Mass. 598 reversed.
The facts, which involve the construction of the Carmack
Page 233 U. S. 99
Amendment to the Hepburn Act and the right of a common carrier
which has filed schedules containing regulations as to passengers'
baggage to limit its liability for loss of such baggage caused by
its own negligence to the extent and in the manner specified in the
schedules, are stated in the opinion.
Page 233 U. S. 106
MR. JUSTICE DAY delivered the opinion of the Court.
Katharine Hooker brought an action in the Superior Court of
Middlesex County, Massachusetts, to recover from the Boston &
Maine Railroad as a common carrier on account of the loss of
certain baggage belonging to her, which had been transported by the
defendant in interstate commerce from Boston, Massachusetts, to
Sunapee Lake Station, New Hampshire, on September 15, 1908. The
plaintiff recovered a judgment for the value of the baggage lost,
with interest. The case was taken to the Supreme Judicial Court of
Massachusetts upon exceptions of the defendant, and upon its
rescript, returned to the
Page 233 U. S. 107
superior court, overruling the exceptions (209 Mass. 598),
judgment was there entered for the plaintiff for $2,253.77.
The defendant insists that the recovery of the plaintiff should
have been limited to the sum of $100 in view of certain
requirements made by it concerning the transportation of baggage
and filed with the Interstate Commerce Commission. From the
findings of fact, it appears that the baggage was checked upon a
first-class ticket purchased for the plaintiff (although not used
by her, she traveling upon another similar ticket purchased by
herself); that, at the time the baggage was checked, the plaintiff
had no notice of the regulations hereinafter referred to, limiting
the liability of the defendant (further than such notice is to be
presumed from the schedules filed and posted as hereinafter
stated); that no inquiry was made by the defendant on receiving the
plaintiff's baggage as to its value; that there was no evidence
that any more expensive or different mode of transportation was
adopted for baggage the value of which was declared to exceed $100
than for other baggage; that any reasonable person would infer from
the outward appearance of the plaintiff's baggage when tendered to
the defendant for transportation that the value largely exceeded
$100, and that the loss of plaintiff's baggage was due to the
negligence of defendant.
The court further found that, previous to and during September,
1908, the defendant had published and kept open for inspection and
filed with the Interstate Commerce Commission, in accordance with
the act of Congress relating to interstate commerce and amendments
thereto and the orders and regulations of the Commission, schedules
giving the rates, fares, and charges for transportation between
different points, including Boston and Sunapee Lake Station, all
terminal, storage, and other charges required by the Commission,
all privileges and facilities granted or allowed, and all rules or
regulations
Page 233 U. S. 108
which in any way affected or determined such rates, fares, and
charges or the value of the service rendered to passengers; that,
during the same time, in accordance with an order of the Commission
of June 2, 1908, making comprehensive regulations as to rate and
fare schedules, the defendant had placed with its agent in Boston
all rate and fare schedules and the terminal and other charges
applicable to that station, and had enabled and required him to
keep in accessible form a file of such schedules, and had
instructed him to give information contained therein to all seeking
it, and to afford to inquirers opportunity to examine the
schedules, and that the defendant in the manner shown and in all
other ways conformed to the acts of Congress and the orders and
regulations of the commission with reference to such schedules. The
court also found that the schedules contained provisions limiting
the free transportation of baggage to a certain weight, and the
liability of the defendant to $100, followed by a table of charges
for excess weight, and also contained the following provision:
"For excess value, the rate will be one half of the current
excess baggage rate per one hundred pounds for each one hundred
dollars, or fraction thereof, of increased value declared. The
minimum charge for excess value will be 15 cents."
"Baggage liability is limited to personal baggage not to exceed
one hundred dollars in value for a passenger presenting a full
ticket and fifty dollars in value for a half ticket, unless a
greater value is declared and stipulated by the owner and excess
charges thereon paid at time of checking the baggage [p. 600];"
that the excess charge for transporting baggage valued at
$1,904.50, which was the value of the baggage lost, from Boston to
Sunapee Lake Station during September, 1908, according to the
schedules, was $4.75; that notices were posted at or near the
offices where passenger's tickets were sold in the Boston
Page 233 U. S. 109
station, stating that tariffs naming the rates on interstate
traffic were on file with the agent, and would be furnished for
inspection upon application, and that notices were posted in the
baggage room of that station, in a conspicuous place, and in sight
of persons using the room for checking baggage, reading that
personal baggage not exceeding $100 in value would be checked free
for each passenger on presentation of a first-class ticket, and
containing information with reference to excess weight. And the
court further found that the plaintiff did not declare at the time
her baggage was checked that it exceeded $100 in value, and did not
pay any charges for valuation in excess of that amount.
It is to be borne in mind that the action as tried and decided
in the state court was not for negligence of the railroad company
as a warehouseman for the loss of the baggage after its delivery at
Sunapee Lake Station, but was solely upon the contract of carriage
in interstate commerce.
The Supreme Judicial Court of Massachusetts, in deciding the
case, held that the Interstate Commerce Act did not in any wise
change the common law rule, applicable in Massachusetts, that
regulations of this character, limiting the amount of recovery for
baggage lost, must be brought home to the knowledge of the shipper
and assented to, or circumstances shown from which assent might be
implied. In reaching this conclusion, that learned court relied
upon the case of
Pennsylvania R. Co. v. Hughes,
191 U. S. 477, in
which case it was held that a state might apply its local law and
policy to recovery for the loss of a horse shipped in interstate
commerce from Albany, New York, to Cynwyd, in the State of
Pennsylvania, and injured by the negligence of a carrier in the
latter state, notwithstanding the bill of lading contained an
express condition that the carrier assumed liability to the extent
only of the agreed valuation in event of loss.
Page 233 U. S. 110
It was further held in the
Hughes case that the
Interstate Commerce Act, in the respect then under consideration,
had not enacted an exclusive rule upon which recovery might be had
governing responsibility for loss, and that, as the law then stood,
the state might enforce its own regulations authorized by statute
or judicial decision as to responsibility for such negligence.
Since the decision in the
Hughes case, the Hepburn Act
of June 29, 1906, 34 Stat. 584, c. 3591, has been passed, and this
Court has held that, by virtue of that act (particularly § 7, the
Carmack Amendment), the subject of interstate transportation of
property has been regulated by federal law to the exclusion of the
power of the states to control in such respect by their own policy
or legislation. In this connection, we may refer to the cases of
Adams Express Co. v. Croninger, 226 U.
S. 491;
Wells, Fargo & Co. v. Neiman-Marcus
Co., 227 U. S. 469;
Kansas City Southern Ry. Co. v. Carl, 227 U.
S. 639;
Missouri, Kansas & Texas Ry. Co. v.
Harriman, 227 U. S. 657.
The cases in 226 and 227 U.S., it is true, involved liability
for express or freight shipments made upon express receipts, bills
of lading, or separate contracts, showing on their face or by
reference to tariffs the opportunity for valuation for the purpose
of fixing the rate and liability, and the limitation appearing in
such form of contract was declared to be valid and effectual to
relieve the carrier from a greater liability than that therein
expressed. But the Court did not stop there: in
Adams Exp. Co.
v. Croninger, supra, p.
226 U. S. 509,
it said:
"The knowledge of the shipper that the rate was based upon the
value is to be presumed from the terms of the bill of lading and of
the published schedules filed with the Commission."
In
Kansas City Southern Ry. Co. v. Carl, supra, p.
227 U. S. 652,
this Court said:
"The valuation the shipper declares determines the legal rate
where there are two rates based upon valuation. He must take notice
of the rate applicable,
Page 233 U. S. 111
and actual want of knowledge is no excuse. The rate, when made
out and filed, is notice, and its effect is not lost, although it
is not actually posted in the station.
Texas & Pacific
Railway v. Mugg, 202 U. S. 242;
Chicago &
Alton Ry. v. Kirby, 225 U. S. 155. It would open a
wide door to fraud and destroy the uniform operation of the
published tariff rate sheets. When there are two published rates,
based upon difference in value, the legal rate automatically
attaches itself to the declared or agreed value. Neither the
intentional nor accidental misstatement of the applicable published
rate will bind the carrier or shipper. The lawful rate is that
which the carrier must exact and that which the shipper must pay. .
. . To the extent that such limitations of liability are not
forbidden by law, they become, when filed, a part of the rate."
And in
Missouri, K. & T. R. Co. v. Harriman, supra,
p.
227 U. S. 669,
this Court said that the shipper was compelled to take notice of
the rate sheets contained in tariff schedules
"not only because referred to in the contract signed by them,
but because they had been lawfully filed and published. . . . [p.
227 U. S. 671] When the
carrier graduates its rates by value and has filed its tariffs
showing two rates applicable to a particular commodity or class of
articles, based upon a difference in valuation, the shipper must
take notice, for the valuation automatically determines which of
the rates is the lawful rate."
In
Chicago, R.I. & P. Ry. Co. v. Cramer,
232 U. S. 490,
this Court said:
"That rule of liability [the uniform rule established by the
Hepburn Act] is to be enforced in the light of the fact that the
provisions of the tariff enter into and form a part of the contract
of shipment, and if a regularly filed tariff offers two rates,
based on value, and the goods are forwarded at the low value in
order to secure the low rate, then the carrier may avail itself of
that valuation when sued for loss or damage to the property."
And in
Great Northern Ry. Co. v.
O'Connor, 232
Page 233 U. S. 112
U.S. 508, this Court said:
"But, so long as the tariff rate, based on value, remained
operative, it was binding upon the shipper and carrier like, and
was to be enforced by the courts in fixing the rights and
liabilities of the parties. The tariffs are filed with the
Commission, and are open to inspection at every station. In view of
the multitude of transactions, it is not necessary that there shall
be an inquiry as to each article, or a distinct agreement as to the
value of each shipment. If no value is stated, the tariff rate
applicable to such a state of facts applies. If, on the other hand,
there are alternative rates based on value, and the shipper names a
value to secure the lower rate, the carrier, in the absence of
something to show rebating or false billing, is entitled to collect
the rate which applies to goods of that class, and, if sued for
their loss, it is liable only for the loss of what the shipper had
declared them to be in class and value."
Before these cases were decided, this Court had held that the
effect of filing schedules of rates with the Interstate Commerce
Commission was to make the published rates binding upon shipper and
carrier alike, thus making effectual the purpose of the act to have
but one rate, open to all alike, and from which there could be no
departure.
Gulf, Colorado & Santa Fe Ry. Co. v.
Hefley, 158 U. S. 98;
Texas & Pac. Ry. Co. v. Mugg, 202 U.
S. 242;
Armour Packing Co. v. United States,
209 U. S. 56,
209 U. S. 81;
Louis. & Nash. R. Co. v. Mottley, 219 U.
S. 467,
219 U. S. 476.
This principle, it will be perceived, was fully recognized in the
series of cases decided since the passage of the Hepburn Act,
beginning with the case of
Adams Express Co. v. Croninger,
supra. It is true that the Carmack Amendment requires a
receipt or bill of lading to be issued concerning shipments of
property in interstate commerce, and that, in the cases construing
that amendment, a bill of lading was issued, and, according to the
circumstances of the case, the bill of lading and its effect are
discussed in each of these, but the
Page 233 U. S. 113
effect of filing the schedule is not lost sight of, and the
doctrine of the previous cases as to the purpose of filing and the
necessity of adherence to such schedule is uniformly
recognized.
The court below, after conceding that the subject matter of
passenger's baggage in interstate travel is within the control of
Congress, and saying that there was no specific regulation
respecting it, said:
"The precise position of the defendant is that, as the
limitation of liability for baggage was filed and posted as a part
of its schedules for passenger tariff, the limitation thereby
became and was an essential part of its rate, from which, under the
interstate commerce law, it could not deviate, and by which the
plaintiff was bound, regardless of her knowledge of or assent to
it. If the premise is sound, then the conclusion follows, for the
public are held inexorably to the rate published, regardless of
knowledge, assent, or even misrepresentation.
Gulf, Colorado
& Santa Fe Railway v. Hefley, 158 U. S.
98;
Texas & Pacific Railway v. Mugg,
202 U. S.
242;
Melody v. Great Northern Railway, 25 S.D.
606."
It follows, therefore, from the previous decisions in this Court
that, if it be found that the limitation of liability for baggage
is required to be filed in the carrier's tariffs, the plaintiff was
bound by such limitation. Having the notice which follows from the
filed and published regulations, as required by the statute and the
order of the Interstate Commerce Commission, she might have
declared the value of her luggage, paid the excess tariff rate, and
thus secured the liability of the carrier to the full amount of the
value of her baggage, or she might, for the purpose of
transportation, have valued it at $100, and received free
transportation and liability to that extent only, or, as she did,
she might have made no valuation of her baggage, in which event the
rate and the corresponding liability would have automatically
attached. As to the finding
Page 233 U. S. 114
that the plaintiff's baggage was apparently worth more than
$100, as above set forth, it appears that the contents of the two
trunks and suit case were not disclosed or known to the carrier,
and the finding in this respect, necessarily based on the
appearance of the baggage, cannot be said to show a procurement of
transportation in violation of the requirements of the filed
schedules at a rate disproportionate to its known value.
Let us now turn to the Interstate Commerce Act and see whether
the matter of the limitation of baggage liability is covered by
that act. Section 6 provides:
"That every common carrier subject to the provisions of this Act
shall file with the Commission created by this Act, and print and
keep open to public inspection, schedules showing all the rates,
fares, and charges for transportation between different points on
its own route and between points on its own route and points on the
route of any other carrier by railroad, by pipeline, or by water
when a through route and joint rate have been established. If no
joint rate over the through route has been established, the several
carriers in such through route shall file, print, and keep open to
public inspection, as aforesaid, the separately established rates,
fares, and charges applied to the through transportation. The
schedules printed as aforesaid by and such common carrier shall
plainly state the places between which property and passengers will
be carried, and shall contain the classification of freight in
force, and shall also state separately all terminal charges,
storage charges, icing charges, and all other charges which the
Commission may require, all privileges or facilities granted or
allowed, and any rules or regulations which in anywise change,
affect, or determine any part or the aggregate of such aforesaid
rates, fares, and charges, or the value of the service rendered to
the passenger, shipper, or
Page 233 U. S. 115
consignee. Such schedules shall be plainly printed in large
type, and copies for the use of the public shall be kept posted in
two public and conspicuous places in every depot, station, or
office of such carrier where passengers or freight, respectively,
are received for transportation, in such form that they shall be
accessible to the public, and can be conveniently inspected. The
provisions of this section shall apply to all traffic,
transportation, and facilities defined in this Act."
"
* * * *"
"No carrier, unless otherwise provided by this Act, shall engage
or participate in the transportation of passengers or property, as
defined in this Act, unless the rates, fares, and charges upon
which the same are transported by said carrier have been filed and
published in accordance with the provisions of this Act; nor shall
any carrier charge or demand or collect or receive a greater or
less or different compensation for such transportation of
passengers or property, or for any service in connection therewith,
between the points named in such tariffs, than the rates, fares,
and charges which are specified in the tariff filed and in effect
at the time; nor shall any carrier refund or remit in any manner or
by any device any portion of the rates, fares, and charges so
specified, nor extend to any shipper or person any privileges or
facilities in the transportation of passengers or property, except
such as are specified in such tariffs. . . ."
It is to be observed that the schedules are required to state,
among other things, in naming certain charges,
"all other charges which the Commission may require, all
privileges or facilities granted or allowed, and any rules or
regulations which in any wise change, affect, or determine any part
or the aggregate of such aforesaid rates, fares, and charges, or
the value of the service rendered to the passenger, shipper, or
consignee."
The question then is, did the limitation as to liability for
baggage, based
Page 233 U. S. 116
upon the requirement to declare its value when more than $100
was to be recovered, come within that provision?
It seems to us that the ordinary signification of the terms used
in the act would cover such requirements as are here made for the
amount of recovery for baggage lost by the carrier. It is a
regulation which fixes and determines the amount to be charged for
the carriage in view of the responsibility assumed, and it also
affects the value of the service rendered to the passenger. Such
requirements are spoken of, in decisions dealing with them, as
regulations; as, a common carrier
"may prescribe
regulations to protect himself against
imposition and fraud, and fix a rate of charges proportionate to
the magnitude of the risks he may have to encounter."
York Co. v. Central R.
Co., 3 Wall. 107,
70 U. S.
112.
"It is undoubtedly competent for carriers of passengers, by
specific
regulations, distinctly brought to the knowledge
of the passenger, which are reasonable in their character, and not
inconsistent with any statute or their duties to the public, to
protect themselves against liability, as insurers, for baggage
exceeding a fixed amount in value, except upon additional
compensation, proportioned to the risk. And in order that such
regulations may be practically effective and the carrier
advised of the full extent of its responsibility, and,
consequently, of the degree of precaution necessary upon its part,
it may rightfully require, as a condition precedent to any contract
for the transportation of baggage, information from the passenger
as to its value, and if the value thus disclosed exceeds that which
the passenger may reasonably demand to be transported as baggage
without extra compensation, the carrier, at its option, can make
such additional charges as the risk fairly justifies."
Railroad Co. v. Fraloff, 100 U. S.
24.
Mr. Justice Brewer, sitting in the circuit court, in
Ames v.
Union Pac. Ry. Co., 64 F. 165, 178, thus defined the term
"regulation:"
"Within the term 'regulation'
Page 233 U. S. 117
are embraced two ideas; one is the mere control of the operation
of the roads, prescribing the rules for the management thereof,
matters which affect the convenience of the public in their use.
Regulation in this sense may be considered as purely public in its
character, and in no manner trespassing upon the rights of the
owners of railroads. But within the scope of the word 'regulation,'
as commonly used, is embraced the idea of fixing the compensation
which the owners of railroad property shall receive for the use
thereof, and when regulation in this sense is attempted, it
necessarily affects the property interests of the railroad owners,
and it is 'regulation' in this sense of the term."
Turning to the act itself, we think the conclusion that this
limitation is a regulation required to be filed by the act is
strengthened by § 22
*, which
provides:
"But before any common carrier, subject to the provisions of
this act, shall issue any such joint interchangeable mileage
tickets with special privileges, as aforesaid, it shall file with
the Interstate Commerce Commission copies of the joint tariffs of
rates, fares, or charges on which such joint interchangeable
mileage tickets are to be based,
together with specifications
of the amount of free baggage permitted to be carried under such
tickets, in the same manner as common carriers are required to do
with regard to other joint rates by section six of this
act."
This section would indicate that Congress thought that § 6 of
the act had to do with specifications of the amount of baggage
which would be carried free, and that such regulations should be
filed under the requirement of § 6 to which it referred.
This conclusion is further strengthened by the action of the
Interstate Commerce Commission, in requiring by its Tariff Circular
No. 15-A, entitled, "Regulations Governing the Construction and
Filing of Freight Tariffs and Classification
Page 233 U. S. 118
and Passenger Fare Schedules," effective April 15, 1908, and in
force at the time of the loss here in question, that:
"34. Tariffs shall contain, in the order named:"
"
* * * *"
"(g) Rules and regulations which govern the tariff, the title of
each rule or regulation to be shown in bold type. Under this head
all of the rules, regulations, or conditions which in any way
affect the fares named in the tariff shall be entered. . . . These
rules shall include . . . the general baggage regulations, and also
schedule of excess baggage rates, unless such excess baggage rates
are shown in tariff in connection with the fares."
This requirement is a practical interpretation of the law by the
administrative body having its enforcement in charge, and is
entitled to weight in construing the act.
The Act of June 18, 1910 (36 Stat. 539, 546, c. 309), defining,
in § 1, the duties of carriers to make just and reasonable
regulations affecting, among other things, the carrying of
personal, sample, and excess baggage, may be noted in passing. This
statute was before the Commission in a case involving such
regulations. Regulations Restricting the Dimensions of Baggage, 26
I.C.C. 292. Concerning it the Commission, by Clark, Chairman, said
(p. 293):
"Prior to June 18, 1910, the Act to Regulate Commerce contained
no specific provision relating to the interstate transportation of
baggage except in connection with the issuance of joint
interchangeable mileage tickets. The Commission had, however, under
authority of § 6, required carriers to publish and file their
general baggage regulations and their schedules of excess baggage
rates. Section 1 was amended on the date named, the amendment,
insofar as it is material, reading as follows:"
" It is hereby made the duty of all common carriers subject to
the provisions of this act to establish, observe,
Page 233 U. S. 119
and enforce . . . just and reasonable regulations and practices
affecting classifications, . . . the manner and method of
presenting, marking, packing, and delivering property for
transportation, the facilities for transportation, . . . the
carrying of personal, sample, and excess baggage."
And it is to be observed that the Commission considers its
requirement with reference to including baggage regulations in the
tariff schedules, quoted above, as adequate, for the same
provisions appear in its current circular.
We are therefore of the opinion that the requirement published
concerning the amount of the liability of the defendant, based upon
additional payment where baggage was declared to exceed $100 in
value was determinative of the rate to be charged, and did affect
the service to be rendered to the passenger, as it fixed the price
to be paid for the service rendered in the particular case, and was
therefore a regulation within the meaning of the statute.
By permitting the baggage regulations, including the excess
valuation rate, to be filed and become part of the tariff
schedules, the rule of the common law that the carrier becomes an
insurer of the safety of baggage against accidents not the act of
God or the public enemy or the fault of the passenger (the rule
established in this country, 3 Hutchinson on Carriers § 1241) was
not changed. The effect of such filing is to permit the carrier by
such regulations to obtain commensurate compensation for the
responsibility assumed for the safety of the passenger's baggage,
and to require the passenger, whose knowledge of the character and
value of his baggage is peculiarly his own, to declare its value
and pay for the excess amount. There is no question of the
reasonableness or propriety of making such regulations, which would
be binding upon the passenger if brought to his knowledge in such
wise as
Page 233 U. S. 120
to make an agreement or what is tantamount thereto. This much is
conceded by the learned counsel for the plaintiff in error. The
liability of a carrier under the Interstate Commerce Act was said,
in the
Croninger case (226 U.S. p.
226 U. S.
511), to be (aside from the responsibility for the
default of a connecting carrier)
"not beyond the liability imposed by the common law, as that
body of law applicable to carriers has been interpreted by this
Court as well as many courts of the states."
And in that case (p.
226 U. S. 509)
it was laid down as the established rule of common law
"as declared by this Court in many cases that such a carrier may
by a fair, open, just, and reasonable agreement limit the amount
recoverable by a shipper in case of loss or damage to an agreed
value made for the purpose of obtaining the lower of two or more
rates of charges proportioned to the amount of the risk."
And see the previous cases in this Court there cited.
But the effect of the regulations, filed as required, giving notice
of rates based upon value when the baggage to be transported was of
a higher value than $100, and the delivery and acceptance of the
baggage without declaration of value or notice to the carrier of
such higher value, charges the carrier with liability to the extent
of $100 only.
The language of the regulation filed reads: "Baggage liability
is limited to personal baggage not to exceed $100 in value, etc.,
unless a greater value is declared, etc." We have said that this
limitation does not relieve from the insurer's liability when the
loss occurs otherwise than by negligence, and we think applies
equally when negligence of the carrier is the cause of loss, as is
found in this case. The effect of the filing gives the regulation
as to baggage the force of a contract determining "Baggage
liability." In
Hart v. Pennsylvania R. Co., 112 U.
S. 331, followed in the later cases in this Court, it
was held that a recovery may not be had above the amount stipulated
though the loss results from the carrier's negligence. "The
carrier
Page 233 U. S. 121
must respond for negligence up to that value." The discussion
and conclusion reached in the
Croninger and
Carl
cases,
supra, leave nothing to be said on this point. This
rule is recognized in New York (
Tewes v. North German Lloyd
S.S. Co., 186 N.Y. 151;
Gardiner v. New York Central &
H. R. Co., 201 N.Y. 387).
If the charges filed were unreasonable, the only attack that
could be made upon such regulation would be by proceedings
contesting their reasonableness before the Interstate Commerce
Commission. While they were in force, they were equally binding
upon the railroad company and all passengers whose baggage was
transported by carriers in interstate commerce. This being the
fact, we think the limitation of liability to $100 fixed the amount
which the plaintiff could recover in this case, and there was error
in affirming the recovery for the full value of the baggage in the
absence of a declaration of such value and payment of the
additional amount required to secure liability in the greater
sum.
We do not think the requirement of the Carmack Amendment that a
railway company receiving property for transportation in interstate
commerce shall issue a receipt or bill of lading therefor required
other receipts than baggage checks, which it is shown were issued
when the baggage was received in this case. When the amendment was
passed, Congress well knew that baggage was not carried upon bills
of lading, and that carriers had been accustomed to issue checks
upon receipt of baggage. We do not think it was intended to require
a departure from this practice when the matter was placed under
regulation by schedules filed and subject to change for
unreasonableness upon application to the Commission. Such checks
are receipts, and there is no special requirement in the statute as
to their form. It is doubtless in the power of the Interstate
Commerce Commission to make requirements as to the checks or
receipts to be given for baggage if that
Page 233 U. S. 122
subject needs regulation. Act of June 18, 1910, §§ 1 and 15, 36
Stat. 539, c. 309.
Reversed and remanded to the Superior Court of Massachusetts
for further proceedings not inconsistent with this
opinion.
* As amended by the Act of Feb. 8, 1895, c. 61, 28 Stat.
643.
MR. JUSTICE PITNEY, dissenting:
I have been unable to find a previous instance where any court,
in this country at least, in an action by shipper or passenger
against common carrier for loss of freight or baggage occasioned by
the negligence of the carrier or its employees, has held the
recovery to be limited to an arbitrary sum unrelated to the value
of the goods lost, and this without any previous valuation or
agreement assented to by the shipper or passenger, without any
representation of value made by him, and without even notice
brought home to him of any rule or regulation upon which the
limitation of liability is based. The effect given by the present
decision to a "regulation" prescribed by the carrier that, while
formally promulgated, was in fact unknown to the passenger, seems
to me an entire departure from the principles governing the duties
and responsibilities of common carriers as heretofore recognized by
this Court and by the courts of the states generally, as laid down
in the textbooks and cyclopedias of law, and as reiterated and
applied by this Court in a recent series of notable decisions.
We are referred to the "Act to Regulate Commerce" of February 4,
1887, February 4, 1887, 24 Stat. 379, c. 104, as amended in 1906 by
the Hepburn Act, 34 Stat. 584, c. 3591, with citation of the
provision in § 6 of the act respecting the filing and publication
of schedules showing the rates, fares, and charges for
transportation, etc., and with particular emphasis upon the
so-called Carmack Amendment. I do not find in either of these any
phrase or expression that manifests a legislative intent to lessen
or limit in any way
Page 233 U. S. 123
the carrier's liability as
quasi-insurer, much less its
responsibility for losses due to its own negligence or that of its
employees. Neither enactment in terms imposes any duty or burden
upon the shipper or passenger affecting the question at issue, and
the Carmack Amendment at least, contains a clear expression of the
legislative purpose to enforce the carrier's responsibility for
losses of property caused by it, without regard to any rule or
regulation exempting it.
The result reached in the present case -- which seems so
contrary to all previous adjudications and to the apparent meaning
of the acts of Congress -- is based (if I understand the opinion)
not upon any legislation directly addressed to the particular
subject, but upon inferences deduced by indirect reasoning from the
assumed policy of the law. The reasoning, as I am constrained to
believe, disregards familiar principles established by repeated
decisions of this Court, in the light of which Congress undoubtedly
legislated, and it has the effect of placing honest but unskilled
shippers and passengers at a serious disadvantage in dealing with
common carriers, enabling the latter, by "regulations" never called
to the attention of the former, to obtain practical immunity from
responsibility for losses due to their own negligence.
The consequences are so serious that I have been unable to
convince myself that I should acquiesce in silence.
The salient facts are mentioned in the opinion, but some are not
noticed, and it is proper to state that plaintiff traveled, in
September, 1908, as an interstate passenger upon defendant's train
from Boston, Massachusetts, to Sunapee Lake, New Hampshire, having
in fact paid two first-class fares, one ticket being used for the
checking of her baggage, the other for her personal transportation.
Defendant's schedules, filed with the Interstate Commerce
Commission and published in the mode prescribed by the act of
Congress, showed the rates of fares between
Page 233 U. S. 124
these places, and contained a provision stating that
"One hundred and fifty pounds of personal baggage, not exceeding
one hundred dollars in value, will be checked free for each
passenger on presentation of a full ticket. . . . For excess
weight, charge will be made as follows [here was inserted a table
of charges for excess weights, and at the foot of it the
following]: For excess value, the rate will be one half of the
current excess baggage rate per one hundred pounds for each one
hundred dollars, or fraction thereof, of increased value declared.
The minimum charge for excess value will be 15 cents. Baggage
liability is limited to personal baggage not to exceed one hundred
dollars in value for a passenger presenting a full ticket . . .
unless a greater value is declared and stipulated by the owner and
excess charges thereon paid at time of checking the baggage."
Plaintiff's baggage consisted of three pieces, of the value of
$1,904.50, and the charge on this valuation for transportation from
Boston to Sunapee Lake, according to the schedules, would have been
25�. for each excess $100 or fraction thereof, or $4.75 in all.
Plaintiff did not declare and stipulate at the time the baggage was
checked that it exceeded $100 in value, and did not pay any charge
for valuation in excess of that amount. Defendant's agents did not
request any such declaration, and made no inquiry respecting value;
but it is found as a fact that, from the outward appearance of the
baggage when tendered to defendant for transportation, any
reasonable person would have inferred that its value largely
exceeded $100. There was nothing to show that any more expensive or
different mode of transportation was adopted for baggage whose
value was declared to exceed $100 than for other baggage. Nor was
there anything to show that plaintiff, or her agent who attended to
the checking of the baggage for her, had notice of defendant's
regulations for limiting its liability. In the Boston passenger
station, notices were posted that
"Freight
Page 233 U. S. 125
and passenger tariffs naming rates on interstate traffic are on
file with the agent, and will be furnished for inspection upon
application,"
and in the baggage room was a notice that
"One hundred and fifty pounds of personal baggage, not exceeding
$100 in value, will be checked free for each passenger on
presentation of a full ticket."
There was nothing in either of these notices to call attention
to any charge for excess value, nor any statement in terms that the
baggage liability was limited to $100. Nor was it shown that the
notices themselves were ever seen by plaintiff or her agent. It
appears, however, that, because the weight of her baggage exceeded
by 45 pounds the weight allowable under the company's rules, a
payment of twenty-three cents was made for checking the baggage.
Ordinary numbered baggage checks appear to have been delivered to
plaintiff's agent, but nothing else in the form of a receipt or
bill of lading. The baggage was not lost in transit, but was
destroyed by fire while in defendant's charge, more than twenty-six
hours after its arrival at defendant's Sunapee Lake Station. It was
distinctly found as a fact that the loss was due to defendant's
negligence.
In the trial court, plaintiff relied wholly upon a count of her
declaration which, after reciting the status of defendant as a
common carrier, and the contract of carriage in interstate
commerce, averred as ground of recovery the neglect and refusal of
defendant to deliver the baggage to plaintiff at Sunapee Lake upon
demand made, accompanied with a tender of the checks. But the
course of the trial shows that negligence was a principal issue, if
not the only vital issue; both parties requested findings upon the
question, and findings were made in response to their respective
requests, and upon review, the state supreme court treated
negligence as the asserted ground of liability, saying (209 Mass.
599):
"The plaintiff, an interstate passenger of the defendant,
claims
Page 233 U. S. 126
damages in excess of $2,000 for loss of her baggage occurring
through the negligence of the defendant."
Although, according to the well known Massachusetts doctrine,
the railroad company's responsibility strictly as carrier would
seem to have terminated with the completion of the transit and the
safe deposit of the baggage in the railroad station, its
responsibility thereafter being that of warehouseman (
Thomas v.
Boston & Providence Railroad Corp., 10 Met. 472, 477;
Norway Plains Co. v. Boston & Maine Railroad, 1 Gray,
263, 273;
Barron v. Eldredge, 100 Mass. 455, 459;
Lane
v. Boston & Albany Railroad Co., 112 Mass. 455, 462;
Stowe v. New York &c. Railroad Co., 113 Mass. 521,
523;
Rice v. Hart, 118 Mass. 201, 207), the distinction
appears to have been ignored by the Massachusetts court in
discussing the case, perhaps because it does not affect the
responsibility for loss of goods attributable to negligence, there
being in this respect no difference between a carrier and a
warehouseman. But it might affect the question whether defendant's
responsibility is to be determined in the light of the Interstate
Commerce Act, and I concede that it is.
It is, of course, true that in
Adams Express Co. v.
Croninger, 226 U. S. 491,
this Court held that, by the Carmack Amendment (34 Stat. 595, set
forth in the margin [
Footnote
1]) the
Page 233 U. S. 127
subject matter of the liability of railroads under bills of
lading issued for interstate freight is placed under federal
regulation so as to supersede the local law and policy of the
several states, whether evidenced by judicial decision, by statute,
or by state constitution.
And I concede that the Supreme Court of Massachusetts erred if
it intended to hold that the carrier's responsibility for
interstate passengers' baggage is not likewise within the sweep of
the amendment.
The concrete question, therefore, is whether, under the
Interstate Commerce Act and the Carmack Amendment, this defendant's
liability to plaintiff, upon the facts stated, is properly to be
limited to $100.
My views, in brief, are:
(a) That the baggage regulation limiting the liability to the
amount named (if construed as operative without the knowledge or
consent of the passenger, and in the absence of an actual valuation
of the goods, assented to by the passenger) is not authorized or
sanctioned by the Commerce Act, and is invalid because contrary to
the established policy of the law governing the common carrier in
the performance of its public duties, and because contrary to the
letter and spirit of the Carmack Amendment.
(b) That the regulation had not received the approval of the
Interstate Commerce Commission, but, on the contrary, was covered
by an adverse administrative ruling made by the Commission a few
months before the occurrences that gave rise to this action.
(c) That, being invalid
per se, the regulation derived
no legal force or vitality from being included in the filed and
published schedules.
(d) That the filing of the regulation cannot give it the force
of a contract, because (1) plaintiff was ignorant of the regulation
in fact; (2) to make it a part of her contract without her
knowledge would render it a contract limiting
Page 233 U. S. 128
the carrier's liability for negligence to an arbitrary sum
without any agreement or representation of value on the part of
plaintiff, and therefore void as being contrary to the established
public policy, and (3) the law will not raise by implication an
agreement that is contrary to the policy of the law.
(e) That plaintiff is not estopped to recover the full value of
her goods, for she was entirely free from blame in the matter, made
no representation as to value, and sought no special advantage.
(f) That even were the contract of carriage as actually made
invalid, this would not render the bailment unlawful, and (at
least) the carrier would be responsible for the loss of the goods
through negligence, irrespective of the contract.
(g) That, by the terms of the Carmack Amendment, the railroad
company in this case is precluded from setting up a limitation of
liability (1) because the limitation as asserted against a
passenger who was ignorant of the regulation, and had made no
contract under it, amounts to a rule or regulation for exempting
the carrier from liability for a loss of property caused by the
carrier's negligence, contrary to the terms to the amendment, and
(2) because the carrier waived any benefit of the regulation (if
that were valid) by failing to deliver to plaintiff a receipt or
bill of lading embodying the terms of the contract as required by
the same enactment.
The importance of the subject seems to warrant a somewhat
extended discussion.
(1) Reference is made to § 6 of the Commerce Act as amended by
the Hepburn Act, the portion relied upon being that which requires
the filed and published schedules to state
"any rules or regulations which in any wise change, affect, or
determine any part or the aggregate of such aforesaid rates, fares,
and charges, or the value of the service rendered to the passenger,
shipper, or consignee. "
Page 233 U. S. 129
In this respect, the act has remained substantially unchanged
since the amendment of March 2, 1889, 25 Stat. 855, c. 382, quoted
in the margin. [
Footnote 2]
It is important to observe that § 6, either before or since the
Hepburn Act,
does not prescribe what the rules and regulations
shall be. Neither this section nor any other section of the
act confers upon the carrier any authority over the subject. It is
implied that there may be, indeed must be, rules and regulations
for carrying on the business of a common carrier, in order to
secure system, efficiency, and a just performance of its public
duties, and § 6, recognizing this, prescribes -- and, as I think,
only prescribes -- that whatever rules and regulation may be duly
established which "in any wise change, affect, or determine the
rates, fares, and charges, or the value of the
Page 233 U. S. 130
service rendered," shall be included in the filed and published
schedules. But does it follow from this that the carrier may make
any rules and regulations it chooses? Is the carrier to be a law
unto itself? And, if not, what are the limitations upon its power?
The answer, I think, is plain. The authority to establish rules and
regulations, unless it arise from express legislative authority, is
derived by implication from the necessities of the case, in view of
the nature of the business, and is plainly subject to the
limitation that the rules and regulations shall not be such as to
contravene the letter or the policy of the law, nor such as to
evade responsibility for the due performance of the public duties
of the carrier.
This is a principle universally recognized from an early day by
the courts of this country, and it lies at the foundation of the
rule everywhere prevalent (differing, in this regard, from the rule
that prevailed in England for a time prior to the Railway &
Canal Traffic Act 1854, 17 and 18 Vict. c. 31, § 7), that the
carrier cannot limit his liability by any general regulation or
published notice.
It is for this reason, primarily, that the regulation here in
question -- "Baggage liability is limited to personal baggage not
to exceed $100 in value . . . unless a greater value is declared,"
etc. -- if treated as intended to be effective without the
knowledge or assent of the passenger, seems to me to be a
regulation entirely beyond the power of the carrier to establish.
The state reports are full of cases recognizing the principle, and
applying and enforcing it with respect to the particular subject
matter now under consideration. It is not necessary, however, to go
outside of our own reports, for this Court, from the beginning
until now, has constantly recognized and steadfastly enforced this
limitation of the authority of the common carrier with respect to
regulations of the same essential character as the one now in
question.
Page 233 U. S. 131
Thus, in
New Jersey Steam Navigation
Co. v. Merchants' Bank, 6 How. 344,
47 U. S. 382,
the Court held that the carrier could not by published notices
seeking to limit its responsibility exonerate itself from the
duties which the law annexed to its employment. And, dealing with
an express stipulation, the Court, by Mr. Justice Nelson (p.
47 U. S. 382),
said:
"But admitting the right thus to restrict his obligation, it by
no means follows that he can do so by any act of his own.
He is
in the exercise of a sort of public office, and has public duties
to perform, from which he should not be permitted to exonerate
himself without the assent of the parties concerned. And this is
not to be implied or inferred from a general notice to the public,
limiting his obligation, which may or may not be assented to.
He is bound to receive and carry all the goods offered for
transportation, subject to all the responsibilities incident to his
employment, and is liable to an action in case of refusal. And we
agree with the court in the case of
Hollister v. Nowlen,
19 Wend. 234, 247, that if any implication is to be indulged from
the delivery of the goods under the general notice, it is as strong
that the owner intended to insist upon his rights and the duties of
the carrier as it is that he assented to their qualification. The
burden of proof lies on the carrier, and
nothing short of an
express stipulation by parol or in writing should be permitted to
discharge him from duties which the law has annexed to his
employment."
In
York Co. v. Central
Railroad, 3 Wall. 107,
70 U. S. 112,
the Court, speaking by Mr. Justice Field, said:
"The law prescribes the duties and responsibilities of the
common carrier. He exercises, in one sense, a public employment,
and has duties to the public to perform. Though he may . . .
prescribe regulations to protect himself against imposition and
fraud, and fix a rate of charges proportionate to the magnitude of
the risks he may have to encounter, he can make no discrimination
between persons, or vary his charges from their condition or
character.
Page 233 U. S. 132
He is bound to accept all goods offered within the course of his
employment, and is liable to an action in case of refusal. He is
chargeable for all losses except such as may be occasioned by the
act of God or the public enemy. He insures against all accidents
which result from human agency, although occurring without any
fault or neglect on his part, and
he cannot by any mere act of
his own avoid the responsibility which the law thus imposes. He
cannot screen himself from liability by any general or special
notice, nor can he coerce the owner to yield assent to a limitation
of responsibility by making exorbitant charges when such assent is
refused. The owner of the goods may rely upon this
responsibility imposed by the common law, which
can only be
restricted and qualified when he expressly stipulates for the
restriction and qualification. But when such stipulation is
made, and it does not cover losses from negligence or misconduct,
we can perceive no just reason for refusing its recognition and
enforcement."
In
Railroad Co. v. Manufacturing
Co., 16 Wall. 318,
83 U. S. 329,
the Court, after repeating the language I have quoted from the
opinion in 6 How., proceeded to say:
"These considerations against the relaxation of the common law
responsibility by public advertisements
apply with equal force
to notices having the same object, attached to receipts given
by carriers on taking the property of those who employ them into
their possession for transportation. Both are attempts to obtain,
by indirection, exemption from burdens imposed in the interests of
trade upon this particular business.
It is not only against the
policy of the law, but a serious injury to commerce, to allow the
carrier to say that the shipper of merchandise assents to the terms
proposed in a notice, whether it be general to the public or
special to a particular person, merely because he does not
expressly dissent from them. If the parties were on an
equality in their dealings with each other, there might be some
show of reason for assuming acquiescence from silence, but, in
Page 233 U. S. 133
the nature of the case, this equality does not exist, and
therefore every intendment should be made in favor of the shipper
when he takes a receipt for his property, with restrictive
conditions annexed, and says nothing, that he intends to rely upon
the law for the security of his rights.
It can readily be seen,
if the carrier can reduce his liability in the way proposed, he can
transact business on any terms he chooses to prescribe. . . . The
law, in conceding to carriers the ability to obtain any reasonable
qualification of their responsibility by express contract, has gone
as far in this direction as public policy will allow."
So, in
Railroad Co. v. Fraloff, 100 U. S.
24,
100 U. S. 27,
the Court said:
"It is undoubtedly competent for carriers of passengers,
by
specific regulations, distinctly brought to the knowledge of the
passenger, which are reasonable in their character, and not
inconsistent with any statute or their duties to the public,
to protect themselves against liability as insurers, for baggage
exceeding a fixed amount in value, except upon additional
compensation, proportioned to the risk. And in order that such
regulations may be practically effective, and the carrier advised
of the full extent of its responsibility, and, consequently, of the
degree of precaution necessary upon its part,
it may rightfully
require, as a condition precedent to any contract for the
transportation of baggage, information from the passenger as to its
value, and if the value thus disclosed exceeds that which the
passenger may reasonably demand to be transported as baggage
without extra compensation, the carrier at its option, can make
such additional charge as the risk fairly justifies."
(2) And if it is against the policy of the law for a common
carrier to limit its "common law liability" -- that of
quasi-insurer of goods -- by general regulation or
published notice not assented to by the passenger or shipper, this
is more emphatically true with respect to its responsibility for
losses due to the negligence of the carrier or of its servants;
for, even by express contract, upon whatever
Page 233 U. S. 134
consideration, the carrier is not permitted to obtain exemption
from liability for negligence.
New Jersey Steam Navigation
Co. v. Merchants' Bank, 6 How. 344,
47 U. S. 383;
York Co. v. Central
Railroad, 3 Wall. 107,
70 U. S. 113;
Railroad Co. v.
Lockwood, 17 Wall. 357,
84 U. S. 375,
84 U. S. 384;
Bank of Kentucky v. Adams Express Co., 93 U. S.
174,
93 U. S.
183.
The rule admits of but one exception, and that is hedged with
important qualifications. It is, that, where a contract of carriage
is fairly made between shipper and carrier agreeing upon a
valuation of the property carried, or based upon a valuation
declared by the shipper and relied on by the carrier, with a rate
of freight based upon a condition limiting the carrier's liability
to the amount of the agreed or declared valuation, and the
valuation is in good faith relied upon by the carrier, and is not a
mere cover for an attempt by the carrier to escape liability for
negligence, the contract will be recognized as a proper mode of
securing a due proportion between the amount for which the carrier
is responsible and the freight he receives, and the shipper will be
estopped from claiming more than the agreed or declared valuation,
even in case of a loss due to negligence. So it was laid down by
this Court in
Hart v. Pennsylvania Railroad, 112 U.
S. 331,
112 U. S. 338,
and the grounds of decision were expressed in the opinion of the
Court (by Mr. Justice Blatchford) in terms so clear that, besides
being uniformly followed by this Court until now, they have been
adopted generally by states that adhere to the common law rules of
liability. To quote from the opinion (112 U.S.
112 U. S.
340):
"As a general rule, and in the absence of fraud or imposition, a
common carrier is answerable for the loss of a package of goods
though he is ignorant of its contents, and though its contents are
ever so valuable, if he does not make a special acceptance. This is
reasonable, because he can always guard himself by a special
acceptance or by insisting on being informed of the nature and
value of the articles before receiving them.
Page 233 U. S. 135
If the shipper is guilty of fraud or imposition, by
misrepresenting the nature or value of the articles, he destroys
his claim to indemnity, because he has attempted to deprive the
carrier of the right to be compensated in proportion to the value
of the articles and the consequent risk assumed, and what he has
done has tended to lessen the vigilance the carrier would otherwise
have bestowed [citing cases]. This qualification of the
liability of the carrier is reasonable, and is as important as the
rule which it qualifies. There is no justice in allowing the
shipper to be paid a large value for an article which he has
induced the carrier to take at a low rate of freight on the
assertion and agreement that its value is a less sum than that
claimed after a loss. It is just to hold the shipper to his
agreement, fairly made, as to value, even where the loss or injury
has occurred through the negligence of the carrier. The effect of
the agreement is to cheapen the freight and secure the carriage, if
there is no loss, and the effect of disregarding the agreement,
after a loss is to expose the carrier to a greater risk than the
parties intended he should assume. The agreement as to value, in
this case, stands as if the carrier had asked the value of the
horses, and had been told by the plaintiff the sum inserted in the
contract. The limitation as to value has no tendency to exempt from
liability for negligence. It does not induce want of care. It
exacts from the carrier the measure of care due to the value agreed
on. The carrier is bound to respond in that value for negligence.
The compensation for carriage is based on that value.
The
shipper is estopped from saying that the value is
greater."
(3) Such was the state of the common law of this country, as
universally recognized, when the Interstate Commerce Act was
passed, and I am unable to see in § 6 or elsewhere in that act any
purpose to change it. During the entire time that intervened
between the passage of the act and the passage of the Hepburn Act
(including the Carmack Amendment) in 1906, the courts of the
states
Page 233 U. S. 136
(except in the few states that adopted a policy less favorable
to the carrier) and the federal courts generally administered the
law as before, and without a suggestion, so far as I have observed,
that § 6, in requiring that all rules and regulations having a
bearing upon rates should be filed and published, had in any way
authorized common carriers by any mere rule or regulation, although
properly promulgated, to limit the liability for damages by
negligence in the absence of an express agreement as to value
assented to by the shipper, or some representation of value made by
him.
Indeed, this Court, in the recent case of
Pennsylvania
Railroad v. Hughes, 191 U. S. 477,
191 U. S. 488,
held that § 6, as it stood after the amendment of March 2, 1889,
and before the Hepburn Act, did not amount to a regulation of the
matter of a limitation of the carrier's liability to a particular
sum in consideration of lower freight rates for transportation. To
quote from the opinion (pp.
191 U. S.
487-488):
"It may be assumed that, under the broad power conferred upon
Congress over interstate commerce as defined in repeated decisions
of this Court, it would be lawful for that body to make provision
as to contracts for interstate carriage permitting the carrier to
limit its liability to a particular sum in consideration of lower
freight rates for transportation. But, upon examination of the
terms of the law relied upon, we fail to find any such provision
therein. The sections of the interstate commerce law relied upon by
the learned counsel for plaintiff in error, 24 Stat. 379, 382, 25
Stat. 855, provide for equal facilities to shippers for the
interchange of traffic; for nondiscrimination in freight rates;
for keeping schedules of rates open to public inspection; for
posting the same in public places, with certain particulars as to
charges, rules, and regulations; . . . giving remedies for the
enforcement of the foregoing provisions, and providing penalties
for their violation. . . . While under these provisions it may be
said that Congress
Page 233 U. S. 137
has made it obligatory to provide proper facilities for
interstate carriage of freight, and has prevented carriers from
obstructing continuous shipments on interstate lines,
we look
in vain for any regulation of the matter here in controversy. There
is no sanction of agreements of this character limiting liability
to stipulated valuations, and, until Congress shall legislate
upon it, is there any valid objection to the state enforcing its
own regulations upon the subject, although it may to this extent
indirectly affect interstate-commerce contracts of carriage?"
This query was by the decision answered in the negative. And as
a result, notwithstanding § 6 of the Commerce Act, the courts of
Pennsylvania were left free to disregard the rule laid down in
Hart v. Pennsylvania Railroad and to follow their own
declared doctrine denying the right of a common carrier to limit
its liability for losses due to negligence, even by a special
agreement including a valuation assented to by the shipper. In this
respect, the situation was changed by the Carmack Amendment to the
Hepburn Act, but not (so far as I can see) by any of the changes
made in § 6 by that act.
(4) And I had supposed that since, as before the Carmack
Amendment, under the decisions of this Court in
Adams Express
Co. v. Croninger, 226 U. S. 491, and
the other cases that have followed it along the same line, the
general rules of law that disabled the common carrier from
establishing regulations for limiting its liability by general
notice not brought home to the shipper, and debarred the carrier
from limiting its liability for losses due to negligence except by
a special agreement including a fair valuation assented to by the
shipper, had remained in full force and vigor, and indeed, by the
effect of the amendment, had been made the exclusive rule of
conduct for interstate carriers by rail. For the
Croninger
case not only held (negatively) that the amendment superseded state
laws upon the subject, but (affirmatively)
Page 233 U. S. 138
that, in matters not covered by its own express terms, it had
the effect of establishing the common law rules respecting the
carrier's liability, as laid down in previous decisions of this
Court and adopted generally by the federal courts. To quote from
the opinion (p.
226 U. S.
504):
"Prior to that amendment, the rule of carrier's liability for an
interstate shipment of property, as enforced in both federal and
state courts, was either that of the general common law as declared
by this Court and enforced in the federal courts throughout the
United States,
Hart v. Pennsylvania Railroad, 112 U. S.
331, or that determined by the supposed public policy of
a particular state,
Pennsylvania Railroad v. Hughes,
191 U. S.
477, or that prescribed by statute law of a particular
state,
Chicago &c. Railroad v. Solan, 169 U. S.
133. Neither uniformity of obligation nor of liability
was possible until Congress should deal with the subject. . . .
[Page
226 U. S. 505] That the
legislation supersedes all the regulations and policies of a
particular state upon the same subject results from its general
character. It embraces the subject of the liability of the carrier
under a bill of lading which he must issue, and limits his power to
exempt himself by rule, regulation, or contract. Almost every
detail of the subject is covered so completely that there can be no
rational doubt but that Congress intended to take possession of the
subject and supersede all state regulation with reference to it.
[Page
226 U. S. 507] But it has
been argued that the nonexclusive character of this regulation is
manifested by the proviso of the section, and that state
legislation upon the same subject is not superseded, and that the
holder of any such bill of lading may resort to any right of action
against such a carrier conferred by existing state law. This view
is untenable. It would result in the nullification of the
regulation of a national subject and operate to maintain the
confusion of the diverse regulation which it was the purpose of
Congress
Page 233 U. S. 139
to put an end to. . . .
To construe this proviso as
preserving to the holder of any such bill of lading any right or
remedy which he may have had under existing federal law at the time
of his action gives to it a more rational interpretation than
one which would preserve rights and remedies under existing state
laws, for the latter view would cause the proviso to destroy the
act itself."
It was upon this construction of the act that we proceeded to
determine the validity of the provision in the receipt or bill of
lading there in question, which limited the liability of the
carrier to the agreed value of $50, and we applied thereto the
familiar rules to which I have already referred. Thus, (p.
226 U. S.
509):
"That a common carrier cannot exempt himself from liability for
his own negligence or that of his servants is elementary.
York
Mfg. Co. v. Illinois Central Railroad, 3 Wall. 107;
Railroad
Co. v. Lockwood, 17 Wall. 357;
Bank of Kentucky
v. Adams Express Co., 93 U. S. 174;
Hart v.
Pennsylvania Railroad, 112 U. S. 331,
112 U. S.
338. The rule of the common law did not limit his
liability to loss and damage due to his own negligence, or that of
his servants. That rule went beyond this, and he was liable for any
loss or damage which resulted from human agency, or any cause not
the act of God or the public enemy.
But the rigor of this
liability might be modified through any fair, reasonable, and just
agreement with the shipper which did not include exemption against
the negligence of the carrier or his servants. The inherent
right to receive a compensation commensurate with the risk involved
the right to protect himself from fraud and imposition by
reasonable rules and regulations, and the right to agree upon a
rate proportionate to the value of the property transported. It has
therefore become
an established rule of the common law as
declared by this Court in many cases that such a carrier may by a
fair, open, just, and reasonable agreement limit the amount
recoverable by a shipper in case of loss or damage to an agreed
value made for the
Page 233 U. S. 140
purpose of obtaining the lower of two or more rates of
charges proportioned to the amount of the risk."
The other decisions that have followed the
Croninger
case (
C., B. & Q. Railway v. Miller, 226 U.
S. 513;
Chicago, St.P. &c. Ry. v. Latta,
226 U. S. 519;
Wells, Fargo & Co. v. Neiman-Marcus Co., 227 U.
S. 469;
Kansas City Southern Ry. Co. v. Carl,
227 U. S. 639;
Mo., Kans. & Tex. Ry. Co. v. Harriman, 227 U.
S. 657;
Chicago, R.I. & Pac. Ry. Co. v.
Cramer, 232 U. S. 490;
Great Northern Railway v. O'Connor, 232 U.
S. 508) have simply applied the doctrine therein laid
down under varying circumstances.
In each of these cases, there was a special contract, held by
the Court to have been fairly made, and to amount to a valuation by
the shipper of the goods in question for the purposes of the
shipment. In short, the Court in each instance applied the rule of
liability laid down in
Hart v. Pennsylvania Railroad,
supra.
(5) Because of this firmly established policy of the law
respecting the carrier's responsibility for the consequences of his
negligence, I should have construed the "regulation" in question,
limiting the baggage liability to $100, in subordination to that
policy. According to the canon uniformly applied in construing
statutes, that of giving them no meaning beyond that which the
legislature may constitutionally enact, I should have construed the
baggage regulation as a formula for standardizing the contracts
proposed to be made by the carrier with the assent of passengers;
not that the formula of itself constituted a substitute for a
contract, or was intended to become binding upon the passenger
until directly brought to his notice and in some way consciously
assented to by him.
But my brethren construe it as binding in the absence of any
knowledge or assent on the part of the passenger. So considered, I
deem it void as being a regulation that it was beyond the power of
the common carrier to adopt. And if I am right about this, the fact
that it was included
Page 233 U. S. 141
in the filed and published schedules does not in the least add
to its efficacy.
It is not a question of mere unreasonableness. A carrier may
resort to practices that are so clearly unwarranted by law as to
require no preliminary application to the Commission, and that not
even the sanction of the Commission could validate. I think the
attempt to enforce,
ex parte, such a limitation of
liability is in that category.
(6) But, in fact, the Commission had an attempt to limit the
carrier's liability regulation in question, construed as the Court
now construes it, and had done this prior to the time this action
arose.
I find nothing savoring of approval in Paragraph 34(g) of Tariff
Circular No. 15A, effective April 15, 1908. The reference to
"excess baggage rates" is to charges for excess weight, as I think
sufficiently appears from 26 I.C.C. 292. But, if intended to apply
to excess value, it does not suggest that a limitation of liability
for losses attributable to negligence, effective without the
knowledge or consent of the passenger, is to be made a part of such
regulations.
And in Matter of Released Rates, 13 I.C.C. 550, decided May 14,
1908, the Commission, after full hearing and consideration, made an
administrative interpretation of the Carmack Amendment, holding
distinctly that it did not abrogate the law of the
Lockwood case,
17 Wall. 357, and the
Hart case,
112 U.
S. 331. Among other rules laid down (Mr. Commissioner
Lane writing) were these (p. 553):
"(b) When the shipper has placed upon his goods a specific
value, the carrier accepting the same in good faith as their real
value, the rate of freight being fixed in accordance therewith, the
shipper cannot recover an amount in excess of the value he has
disclosed, even when loss is caused by the carrier's
negligence"
(citing the
Hart case, and quoting in italics from the
opinion to the effect that, under the circumstances disclosed
"
the shipper is estopped
Page 233 U. S. 142
from saying that the value is greater"). And again (p.
554):
"The same principle is applicable when the shipper has in some
other way concealed the nature or the value of his goods in order
to secure a lower rate of freight. . . . It does not appear that
this principle is in any respect in derogation of the provisions of
§ 20 [meaning the Carmack Amendment]. The carrier is made liable
'for any loss, damage, or injury,' and 'no contract, receipt, rule,
or regulation shall exempt such common carrier, railroad or
transportation company from the liability hereby imposed.' But it
is of the highest importance to note that this limitation is not
secured by contract or notice -- the contract has no validity
per se. It is only right that a carrier who has acted in
good faith should be protected against the frauds and
misrepresentations of the shipper, and the law accomplishes this
through the operation of the principle of estoppel. The shipper is
estopped from recovering an amount in excess of the declared value,
and the rule is in perfect harmony with the law as it stands today.
6 Cyc. title 'Carriers,' p. 401, note 5.
(c) If the specified
amount does not purport to be an agreed valuation, but represents
an attempt on the part of the carrier to limit the amount of
recovery to a fixed sum, irrespective of the actual value, the
stipulation is void as against loss due to the carrier's negligence
or other misconduct. Much confusion has arisen from failure to
distinguish between this situation and the situation comprehended
in
Hart v. Pennsylvania Railroad Co. supra. That decision
was expressly predicated upon the principle of estoppel; the
shipper had misrepresented the value of his property, and had
thereby secured the benefit of a lower rate than he was properly
entitled to by virtue of the real value. He was estopped by his
fraudulent conduct from recovering an amount in excess of the value
he had declared. In the case we are now considering, the requisites
of estoppel are wanting. An estoppel cannot
Page 233 U. S. 143
arise unless the party invoking it has been the victim of
misrepresentation, and has himself acted in good faith. Can it
possibly be argued that, when a carrier has arbitrarily placed in
its bill of lading a stipulation limiting the amount of its
liability, regardless of the actual value of the property, it may
claim the benefit of an estoppel? Obviously not; it has not acted
in good faith, neither has it been the victim of
misrepresentation."
And again (p. 556):
"
(d) If the specified amount, while purporting to be an
agreed valuation, is in fact purely fictitious, and represents an
attempt to limit the carrier's liability to an arbitrary amount,
liability for the full value cannot be escaped in event of loss due
to negligence. This situation is substantially identical with
that just considered -- the difference is one in form only."
(7) In the
Hart case,
112 U. S. 331, the
fundamental ground of decision, as appears from what has been
quoted from the opinion, was that, since the shipper had entered
into a special agreement for the purpose of cheapening the freight,
he was estopped from saying that the value of the goods was
greater than the value represented by him for the purposes of the
agreement. So also in the Croninger
case, and the other
recent cases referred to, estoppel was the ground of decision,
as the opinions clearly show (226 U.S. p.
226 U. S. 510,
bottom; 227 U.S. p.
227 U. S. 476,
top; 227 U.S. p.
227 U. S. 651,
top; 227 U.S. p.
227 U. S. 668,
bottom). When participating in these decisions, I, for one, so
understood them. In each case, the principle of estoppel is
essential to the reasoning. In the
Carl case,
227
U. S. 651, it was said:
"When a shipper delivers a package for shipment and declares a
value, either upon request or voluntarily, and the carrier makes a
rate accordingly, the shipper is estopped upon plain principles of
justice from recovering, in case of loss or damage, any greater
amount. The same principle applies if the value be declared in the
form of a contract. If such a valuation be made in good faith
for
Page 233 U. S. 144
the purpose of obtaining the lower rate applicable to a shipment
of the declared value, there is no exemption from carrier liability
due to negligence forbidden by the statute when the shipper is
limited to a recovery of the value so declared. The ground upon
which such a declared or agreed value is upheld is that of
estoppel,"
citing the
Hart case upon this precise point. And in
the
Harriman case,
227 U. S. 668,
the topic is summed up as follows:
"The ground upon which the shipper is limited to the valuation
declared is that of estoppel, and presupposes the valuation to be
one made for the purpose of applying the lower of two rates based
upon the value of the cattle. This whole matter has been so fully
considered in
Adams Express Co. v. Croninger, 226 U. S.
491, and
Kansas City Southern R. Co. v. Carl,
just decided, that we only need to refer to the opinions in those
cases without further elaboration."
That these decisions are inconsistent with the theory that the
mere act of including the regulations upon the subject in the filed
schedules would operate to limit the liability of the carrier,
without any representation or agreement as to value, assented to by
the shipper, seems to me equally clear. Although in each case the
relation of the rate differential to the question of valuation was
brought home to the shipper, so that it appeared that the shipper
had actual notice of the regulation upon the subject contained in
the filed and published schedules, it was not suggested that the
mere existence of such a regulation, coupled with the fact that the
shipment was made at the more advantageous freight rate, had the
effect of limiting the liability of the carrier in the event of a
loss attributable to negligence. On the contrary, while the
relation of the rate differential to the valuation was discussed,
it was treated as merely showing that there was consideration for
the agreement made by the shipper limiting the responsibility of
the carrier, and as showing
Page 233 U. S. 145
the reasonableness of that agreement and the grounds of the
estoppel that grew out of it. It was in each case plainly implied,
if not expressed, that some representation or valuation,
consciously assented to by the shipper was essential to the
limitation of the carrier's liability.
In the present case, there is no ground for an estoppel against
the plaintiff. She made no representation of any kind, her silence
being attributable to her ignorance of the existence of the baggage
regulation. No estoppel arises where the conduct of the party
sought to be estopped is due to ignorance founded upon an innocent
mistake, and the same is more evidently true when the innocent
party is silent because not asked to speak, and unaware that there
is occasion -- much less, duty -- to speak. There is, I think, no
support in reason or authority for holding that a person acting in
good faith, but in ignorance of his rights or of the rights of the
other party, should be estopped on the ground of knowledge imputed
to him by a mere fiction of the law. It is only when good faith
requires one to speak that silence estops him, and in the findings
of fact in this case there is not the slightest ground to attribute
to the plaintiff any want of good faith. Estoppel
in pais
presupposes an actual fault or a culpable silence.
Merchants
Bank v. State Bank, 10 Wall. 604,
77 U. S. 605;
Morgan v. Railroad Co., 96 U. S. 716,
96 U. S.
720.
And it seems sufficiently obvious that the railroad company did
not in any wise rely upon plaintiff's silence to its disadvantage.
There would, I think, be more reason for holding the company itself
estopped, because it, and not the plaintiff, had knowledge of the
baggage regulation, and, according to the findings, it was charged
with notice that the baggage was worth much more than $100, and the
circumstances appearing from the facts as found clearly indicate
that plaintiff, through her agent, in effect tendered herself ready
and willing to pay for her fare and baggage charges whatever was
proper under the
Page 233 U. S. 146
circumstances, and the company set its own price for the service
it was to render.
When the carrier was thus applied to by one of the traveling
public for the performance of a transportation service in the line
of its public duty, without any intimation that anything less than
the full measure of the carrier's responsibility would be accepted,
it was the carrier's duty, I think, according to principles
hitherto recognized, to quote a rate commensurate with the service
demanded, including an unlimited responsibility where nothing less
was mentioned. If the law required it to charge a higher rate for
unlimited than for limited responsibility, it was its duty to quote
such higher rate. Having failed to do this, it ought not afterwards
to be permitted to take advantage of its own wrong. In view of the
Commerce Act, I do not think the carrier, under such circumstances,
is estopped from afterwards claiming the additional compensation
that it ought to have exacted when quoting the rate. But I do think
it ought to be held estopped from setting up any limitation of its
responsibility when no such limitation was in the contemplation of
the patron on demanding the service.
(8) As I read the Interstate Commerce Act, it expresses in its
own terms the extent of the prohibition of special contracts of
carriage. As has often been said, the main purpose of the act was
to prevent discrimination, and the filing of the schedules is the
principal means to that end. Section 6, as amended in 1906 (34
Stat. 587, c. 3591), prohibits the carrier from transporting
passengers or property unless the rates, fares, and charges upon
which the same are transported have been filed and published in
accordance with the act; from charging or collecting a different
compensation for such transportation or for any service in
connection with it than as specified in the tariff, and from
refunding or remitting in any manner or by any device any portion
of the specified rates, or extending
Page 233 U. S. 147
to any shipper or person any privileges or facilities except
such as are specified in the tariff. When, therefore, a carrier has
established and promulgated its tariff, with regulations as to
service such as it has a lawful right to establish, the effect of §
6 is to render unlawful any special contract of carriage made in
contravention of the rates and regulations thus standardized in
accordance with the law. Such is the effect of § 6 of the act, and
it was held to have that effect before the passage of the Hepburn
Act.
Gulf, Colorado &c. Ry. v. Hefley (1895),
158 U. S. 98;
Texas & Pacific Ry. v. Mugg (1906),
202 U.
S. 242;
Chicago & Alton R. Co. v. Kirby,
225 U. S. 155. All
of these cases arose before the Hepburn Act, and the decisions were
based upon § 6 of the Act of February 4, 1887, 24 Stat. 379, c.
104, as amended by act of March 2, 1889, 25 Stat. 855, c. 382, set
forth above in the
margin which
required the carrier to print and publicly post at each station for
the inspection and information of the public the schedules of fares
and rates for carriage of passengers and property, and provided
that it should be unlawful for the carrier to depart from the
published schedules, and upon the third section of the original
act, which made it unlawful to give any undue or unreasonable
preference or advantage to any particular shipper. In the
Hefley case, the question decided was simply that a
statute of Texas imposing a penalty for a failure to deliver goods
on tender of the rate named in the bill of lading was not
applicable to interstate shipments. But the effect of the decision
was to declare that one who had obtained from a common carrier
transportation of goods from one state to another at a rate
specified in the bill of lading, but less than the published
schedule of rates filed with and approved by the Interstate
Commerce Commission and in force at the time, whether he did or did
not know that the rate obtained was less than the scheduled rate,
was not entitled to recover the goods upon the tender of
payment
Page 233 U. S. 148
of the amount of charges named in the bill of lading, or of any
sum less than the scheduled rates; in other words, that a special
contract inconsistent with the published tariff could not avail.
This principle was adopted as the ground of decision in the
Mugg case. And in the
Kirby case, likewise, it
was held that as the broad purpose of the act was to compel the
establishment of reasonable rates and their uniform application, a
special contract by which advantage was given to a particular
shipper could not be enforced. The distinction between a ground of
action based upon the breach of such a special contract and one
based upon the carrier's liability for negligence was clearly
recognized in the opinion (p.
225 U. S.
166), and the latter ground of liability rejected
because not presented by the record. To the same effect is
Louisville & Nashville R. Co. v. Mottley, 219 U.
S. 467,
219 U. S. 476,
which arose after the Hepburn Act.
These cases rest fundamentally upon the ground that to allow the
shipper to have the benefit of a special agreement for lower rates
or for better service than the standard rates and service
prescribed by the published schedules would in effect compel the
carrier to violate the provisions of the act. In this sense and to
this extent, all shippers are "bound" by the provisions of the act
that bind the carrier. But to say that, because of this a shipper
or a passenger who has made no special contract at all, and claims
the benefit of none, shall be conclusively deemed to have made a
special contract, involving terms and conditions of which he was
wholly ignorant, strikes me as a manifest
non sequitur.
And to hold that a passenger whose rights rest not upon any
contract of shipment, but upon the negligence of the carrier, shall
be barred from recovering full redress for the consequences of that
negligence upon the theory that he has unconsciously attempted to
make a special contract in contravention of the act is, I submit
with respect, equally illogical. It seems also a
Page 233 U. S. 149
complete reversal of the
Hart case and the
Croninger case, which declare that a carrier's liability
for negligence can only be limited by such a contract or
representation as shall estop the shipper, to now hold that without
any express contract or representation by the shipper the liability
is limited, on the theory that he is legally charged with notice of
requirements of which he was in fact ignorant.
It is true that, in the case at bar, the Supreme Court of
Massachusetts (209 Mass. at p. 602) unnecessarily, and, as I think,
erroneously, conceded that, if the regulation limiting the baggage
liability to $100 in value was so related to the rates of
transportation of passengers as to be a part of such rate, the
plaintiff was "bound," regardless of her knowledge or assent, and
therefore her recovery in this action would be limited accordingly.
The error, as it seems to me, arose from a misconception of the
effect of the decisions in the
Hefley and
Mugg
cases. The fallacy, if I am correct in deeming it to be such, lies
in the double sense of the word "bound." I respectfully suggest
that this Court, in a matter of such far-reaching importance, ought
not to accept the concession without testing its soundness.
If it were said that, because she did not know of, and therefore
did not assent to, a limitation of liability to $100, she remained
still liable to pay to the railroad company the amount of money
properly chargeable for the excess of valuation, and that the
company had a lien upon the baggage for this amount on its arrival
at destination, I could see the force of the suggestion. This
would, perhaps, be within the doctrine of the
Hefley and
Mugg cases. (Of course, I do not mean to say that the lien
would survive after the goods were lost through the company's
negligence.) But I can find nothing in any of the cases referred to
that lends support to the view that a railroad company can limit
its liability by limiting the rate charged,
Page 233 U. S. 150
without according to the shipper or passenger any voice in the
matter.
The expressions employed in the
Carl case,
227
U. S. 652, that "the valuation the shipper declares
determines the legal rate where there are two rates based upon
valuation," and that "when there are two published rates, based
upon difference in value, the legal rate automatically attaches
itself to the declared or agreed value," had reference to the
effect of a voluntary declaration made by a shipper who fixes the
valuation of his goods for the purposes of the shipment, knowing
that the valuation determines the rate that must be charged,
although perhaps unaware what the precise rate may be. The same is
true of similar language used in the
Harriman case, 227
U.S. at p.
227 U. S. 669,
the
Cramer case, 232 U.S. at p.
232 U. S. 493,
and the
O'Connor case, 232 U.S. at p.
232 U. S. 515.
I am unable to see that the reasoning applies to the case of a
shipper or passenger who has declared no valuation, has exercised
no choice, and is unaware that a choice is open.
To say that constructive notice of the filed regulation, of
which plaintiff was in fact ignorant, gave her an actual
opportunity to declare the value of her baggage, pay the excess
tariff rate, and thus secure the liability of the carrier to the
full amount of her baggage is to say that a fiction is the same as
a fact.
(9) In the
Croninger case and the others of the same
class, the shipper consciously accepted a benefit in the form of a
reduced freight charge as the consideration of an agreement
voluntarily made, valuing the goods for the purposes of the
shipment. But here, the plaintiff did nothing of the kind. She paid
the full price asked by the carrier for transportation of herself
and her baggage, unaware of any regulation of the carrier that
would require the payment of an additional charge for an unlimited
liability for baggage. If she were setting up and relying upon any
special contract made in violation of the law,
Page 233 U. S. 151
the doctrine of the
Hefley, Mugg, and
Kirby
cases would apply. But her cause of action is complete without
resort to any contract, special or general, and the contract of
which her passage tickets and the baggage checks were the tokens
was merely the medium by which the carrier became possessed of her
baggage. Having that baggage in its possession, the responsibility
of the carrier for the exercise by itself and its employees of
reasonable care for the safety of the goods arose under general
principles of law independent of the contract, and those general
principles, as administered in the federal courts (the same as in
the courts of Massachusetts), entitled her to compensation upon the
basis of the actual value of the goods lost, in the absence of a
special agreement or of some representation of value made by her,
limiting that liability.
Conceding, for argument's sake, that the contract of carriage as
made between plaintiff and defendant, if deemed to import
responsibility for the entire value of the baggage, was invalid
because not made in accordance with the regulations filed and
published in connection with the rate schedules, and because of the
provisions of the Interstate Commerce Act that in effect forbid the
making of contracts otherwise than in accord with those schedules
-- even so, the plaintiff was in nowise at fault. She was unaware
that she was at liberty to exercise any option, to say nothing of
being under an obligation to do so. The fault was wholly with
defendant, for it made no inquiry respecting the value of her
baggage, and gave her no notice of any limitation of liability,
although itself charged with notice from the very appearance of the
baggage that it must have been worth more than $100. And her
present action is based upon the carrier's negligence, and not upon
an affirmance of the contract.
Irrespective of the contract, the carrier, like any other bailee
for hire, was bound to take reasonable care to preserve the
property ready for delivery to its owner. I can
Page 233 U. S. 152
find nothing in the letter or the spirit of the Commerce Act
that forfeits her property or any part of its value because of her
violation of the act, supposing her to have violated it. And since,
through the carriers' negligence, the property was lost, it follows
on general principles that her right of action, upon grounds
independent of the contract, remains, it being based upon the
general obligation of the bailee to do justice. The principle is
fundamental and familiar, and has been applied in a great variety
of cases.
Planters Bank v. Union
Bank, 16 Wall. 483,
83 U. S. 500;
Philadelphia, W. & B.R.
Co. v. Philadelphia Towboat Co., 23 How. 209,
64 U. S. 217;
Spring Co. v. Knowlton, 103 U. S. 49,
103 U. S. 58;
Armstrong v. American Exchange Bank, 133 U.
S. 433,
133 U. S. 466;
Logan County Bank v. Townsend, 139 U. S.
67,
139 U. S. 75;
Pullman's Car Co. v. Transportation Co., 171 U.
S. 138,
171 U. S. 151.
And see Newbury v. Luke, 68 N.J.L. 189, 191;
Dunlop v.
Mercer, 156 F. 545, 555;
In re Bunch Co., 180 F. 519,
527.
In
Merchants' Cotton Press Co. v. N.A. Insurance Co.,
151 U. S. 368,
151 U. S. 388,
this Court held that, while an agreement for special rates,
rebates, or drawbacks was void under the Interstate Commerce Act,
the law did not make the contract of affreightment otherwise void,
nor prevent liability on the part of the carrier for the freight
received; that such a construction would encourage, rather than
discourage, unlawful agreements for rebates, since the carrier
might prefer them to a liability for the freight, and that,
although the contract for rebate was void and unenforceable, the
shipper could nevertheless recover for loss of his freight through
the carrier's negligence. This decision has never been overruled or
qualified, and it seems to me quite decisive of the present
question.
(10) Thus far, I have treated the case as one arising under the
common law rules respecting the carrier's liability as laid down in
the decisions of this Court and adopted generally by the federal
courts. I have endeavored
Page 233 U. S. 153
to show that a limitation of the carrier's liability is not
permitted except it result from some actual representation or
contract consciously assented to by the shipper, valuing the goods
for the purposes of the shipment; that the sole ground for limiting
the responsibility to this extent is that the shipper is estopped
by his contract or his representations; that no different result is
to be derived by any implication from the provisions of § 6 of the
Interstate Commerce Act, which merely prevents the making of a
special agreement inconsistent with the schedules, and does not
compel the assumption (contrary to the fact) that a special
agreement was made in conformity to them; that an agreement
inconsistent with the schedules, even if void in itself, does not
make the contract of affreightment otherwise void, nor prevent
liability on the part of the carrier for loss of the goods
attributable to its negligence, and that a shipper who has acted in
good faith is not to be estopped upon the theory that a fiction or
presumption of knowledge is equivalent to actual knowledge, or
amounts to the same as conscious misrepresentation. I have hitherto
refrained from attributing any special force to the Carmack
Amendment as regulative of the subject matter.
But let us now consider the specific force of that amendment (34
Stat. 595, c. 3591, § 7, quoted in marginal note,
ante, p.
233 U. S. 126).
It declares (
inter alia) that a railroad company receiving
property for interstate transportation
"shall issue a receipt or bill of lading therefor, and shall be
liable to the lawful holder thereof for any loss, damage, or injury
to such property caused by it . . . , and no contract, receipt,
rule, or regulation shall exempt such common carrier, railroad, or
transportation company from the liability hereby imposed."
It was concerning this provision that the Court said in the
Croninger case, speaking by Mr. Justice Lurton, 226 U.S.
p.
226 U. S.
505:
"That the legislation supersedes all the regulations and
policies of a particular state upon the same subject results from
its general character. It embraces
Page 233 U. S. 154
the subject of the liability of the carrier under a bill of
lading which he must issue, and limits his power to exempt himself
by rule, regulation, or contract."
This was equivalent to saying that, because the carrier was
obliged to issue to the shipper a receipt or bill of lading for the
goods, and because the terms of the contract of carriage and rules
and regulations pertaining thereto are presumably embodied in the
receipt or bill of lading, therefore the act must be deemed and
exercise by Congress of its general and exclusive power over the
subject matter.
And the language of the enactment shows that it was framed in
view of the general and familiar practice of embodying in the
receipt or bill of lading all the terms of the contract, including
the valuation of the goods and the rules and regulations for
limiting the liability of the carrier. Is it not perfectly manifest
that, when Congress declared that the carrier "shall issue a
receipt or bill of lading," it intended that this document should
embody the "contract, receipt, rule, or regulation" that are
mentioned in the same clause? Is it possible, without twisting the
words from their plain meaning, to read this so that the duty of
the carrier shall be performed if it issues a receipt or bill of
lading that does not evidence the contract between the parties, and
the whole of that contract?
But, in the present case, there was no receipt or bill of lading
within the meaning of the Carmack Amendment as thus interpreted.
There was nothing but three baggage checks, each bearing an
identifying number, but, so far as the case shows, nothing else. I
cannot agree that the statute leaves the carrier free to give a
mere identifying token, instead of a "receipt or bill of lading."
But, if I am wrong in this, it seems too clear for argument that,
so far as the carrier intends that any of its rules or regulations
respecting its responsibility for the baggage are to be imported
into the contract, it is incumbent upon it to set
Page 233 U. S. 155
them forth plainly in a bill of lading delivered to the shipper
or passenger. If the act admits of the construction that a mere
identifying token or check can be used in the place of a formal
receipt or bill of lading, it for that reason must require the
construction that the carrier may, and that he does thereby, waive
the benefit and protection of the rules and regulations. For I
cannot believe that the Carmack Amendment is open to the
construction that the shipper shall be bound by special terms or
conditions respecting anything pertaining to the contract of
carriage and the carrier's responsibility, while the shipper is in
fact ignorant of them. This would leave the carrier free to set a
trap for the innocent shipper or passenger. Nor can I agree that
the act requires any affirmative regulation by the Interstate
Commerce Commission prescribing the form of receipts to be given
for baggage. I concede the Commission may regulate the matter, so
long as it does so in conformity to the letter and spirit of the
statute, but not that the act remains without vitality until the
Commission breathes into it the breath of life. In my view, the
railroad company in the present case, having failed to give such a
receipt or bill of lading as the statute contemplates, cannot be
heard to set up any limitation of its liability for the value of
the goods, for it would thereby in effect claim a benefit from its
own violation of the law.
I submit that the Hepburn Act, like the original act and its
other amendments, is intended to impose duties upon the carrier --
the public servant -- not upon the shipper or passenger. There is
nothing in the letter or the policy of the acts to absolve the
carrier from its long recognized duty to treat all shippers and
passengers fairly, and to give them an actual opportunity to make a
choice, where a choice is legally open to them. A carrier may not
absolve himself in whole or in part from his responsibilities by
any
ex parte action. And where the rate schedules and
accompanying regulations are designed to give an option
Page 233 U. S. 156
to the shipper, it is, I submit, incumbent upon the carrier to
see that the option is in good faith tendered, or else abide by the
more onerous of the alternatives. The Carmack Amendment means this
at least, if it means nothing more. Therefore, the failure to
deliver a bill of lading evidencing the limitation of liability
should impose upon the carrier the highest responsibility, not the
least, that the regulations admit of -- that is to say, an
unlimited responsibility for the goods.
(11) The serious consequences of the present decision are
sufficiently manifest. Heretofore, shippers and passengers have
been entitled to rest in the assurance that a common carrier who
accepted their goods for transportation in the ordinary course of a
carrier's public employment became responsible, without any express
contract upon the subject, for the full value of the goods, in case
of their destruction through any negligence of the carrier or its
agents, unless there was a distinct understanding to the contrary,
participated in by the shipper or passenger. Hereafter, so far as
interstate shipments by rail are concerned, the traveler or shipper
cannot rest upon any such assurance, and will not be safe in
dealing with a railroad company without being authoritatively
instructed respecting the latest regulations filed by the carrier
with the Interstate Commerce Commission at Washington. He cannot
rely upon finding the regulations posted in the railroad station,
for this is not essential to the efficacy of the schedules
(
Texas & Pac. Ry. v. Cisco Oil Mill, 204 U.
S. 449). He cannot rely upon public notices that may be
in fact posted in the station, for these may be misleading, as they
were in the present case. He cannot rely upon receiving information
from the company's local agents, for this may be withheld, as it
was in this case. Unless he is possessed of a copy of the tariff
schedules as filed, with time enough to scrutinize them, and skill
enough to comprehend them, he must perforce accept
Page 233 U. S. 157
whatever terms the railroad company may see fit to offer, and
may not hope to be furnished with even a scrap of paper to indicate
what those terms are.
I can find no support for the result thus reached, either in the
statute or in any previous decision.
[
Footnote 1]
"That any common carrier, railroad, or transportation company
receiving property for transportation from a point in one state to
a point in another state shall issue a receipt or bill of lading
therefor, and shall be liable to the lawful holder thereof for any
loss, damage, or injury to such property caused by it or by any
common carrier, railroad, or transportation company to which such
property may be delivered, or over whose line or lines such
property may pass, and no contract, receipt, rule, or regulation
shall exempt such common carrier, railroad, or transportation
company from the liability hereby imposed:
Provided, that
nothing in this § shall deprive any holder of such receipt or bill
of lading of any remedy or right of action which he has under
existing law."
[
Footnote 2]
"SEC. 6 [as amended by § 1 of the Act of March 2, 1889, c. 382,
25 Stat. 855]. That every common carrier subject to the provisions
of this act shall print and keep open to public inspection
schedules showing
the rates and fares and charges for the
transportation of passengers and property which any such
common carrier has established and which are in force at the time
upon its route.
The schedules printed as aforesaid by any
such common carrier shall plainly state the places upon its
railroad between which property and passengers will be carried, and
shall contain the classification of freight in force, and
shall also state separately the terminal charges and
any rules
or regulations which in anywise change, affect, or determine any
part or the aggregate of such aforesaid rates and fares and
charges. Such schedules shall be plainly printed in large
type, and copies for the use of the public shall be posted in two
public and conspicuous places in every depot, station, or office of
such carrier where passengers or freight, respectively, are
received for transportation, in such form that they shall be
accessible to the public and can be conveniently inspected. . . .
And when any such common carrier shall have established and
published its rates, fares, and charges in compliance with the
provisions of this section, it shall be unlawful for such common
carrier to charge, demand, collect, or receive from any person or
persons a greater or less compensation for the transportation of
passengers or property, or for any services in connection
therewith, than is specified in such published schedule of rates,
fares, and charges as may at the time be in force."