An agreement made by an express company, a common carrier in the
habit of carrying small packages, that the company shall not be
held liable for any loss of or damage to a package whatever
delivered to it unless claim should be made therefor within ninety
days from its delivery to the company, is an agreement which such
company can rightfully make, the time required for transit between
the place where the package is delivered to the company and that to
which it is consigned not being long -- in the present case, a
single day.
Caldwell sued the Southern Express Company in the court below,
as a common carrier, for its failure to deliver at New Orleans a
package received by it on the 23d day of April, 1862, at Jackson,
Tennessee, places the transit between which requires only about one
day. The company pleaded that when the package was received,
"it was agreed between the company and the plaintiff, and made
one of the express conditions upon which the package was
received,
Page 88 U. S. 265
that the company should not be held liable for any loss of, or
damage to, the package whatever, unless claim should be made
therefor within ninety days from its delivery to it."
The plea further averred that no claim was made upon the
defendant or upon any of its agents until the year 1868, more than
ninety days after the delivery of the package to the company, and
not until the present suit was brought. To the plea thus made the
plaintiff demurred generally, and the circuit court sustained the
demurrer, giving judgment thereon against the company. Whether this
judgment was correct was the question now to be passed on here.
Page 88 U. S. 266
MR. JUSTICE STRONG delivered the opinion of the Court.
Notwithstanding the great rigor with which courts of law have
always enforced the obligations assumed by common carriers, and
notwithstanding the reluctance with which modifications of that
responsibility, imposed upon them by public policy, have been
allowed, it is undoubtedly true that special contracts with their
employers limiting their liability are recognized as valid if in
the judgment of the courts they are just and reasonable -- if they
are not in conflict with sound legal policy. The contract of a
common carrier ordinarily is an assumption by him of the exact duty
which the law affixes to the relation into which he enters when he
undertakes to carry. That relation the law regards as substantially
one of insurance against all loss or damage except such as results
from what is denominated the Act of God or of the public enemy. But
the severe operation of such a rule in some cases has led to a
relaxation of its stringency when the consignor and the carrier
agree to such a relaxation. All the modern authorities concur in
holding that, to a certain extent, the extreme liability exacted by
the common law originally may be limited be express contract. The
difficulty is in determining to what extent, and here the
authorities differ. Certainly it ought not to be admitted that a
common carrier can be relieved from the full measure of that
responsibility which ordinarily attends his occupation without a
clear and express stipulation to that effect obtained by him from
his employer. And even when such a stipulation has been obtained,
the court must be able to see that it is not unreasonable. Common
carriers do not deal with their employers on equal terms. There is
in a very important sense a necessity for their employment. In many
cases they are corporations chartered for the promotion of the
public convenience. They have possession of the railroads, canals,
and means of transportation on the rivers. They can and they do
carry at much cheaper rates
Page 88 U. S. 267
than those which private carriers must of necessity demand. They
have on all important routes supplanted private carriers. In fact,
they are without competition except as between themselves, and that
they are thus is in most cases a consequence of advantages obtained
from the public. It is therefore just that they are not allowed to
take advantage of their powers and of the necessities of the public
to exact exemptions from that measure of duty which public policy
demands. But that which was public policy a hundred years ago has
undergone changes in the progress of material and social
civilization. There is less danger than there was of collusion with
highwaymen. Intelligence is more rapidly diffused. It is more easy
to trace a consignment than it was. It is more difficult to conceal
a fraud. And, what is of equal importance, the business of common
carriers has been immensely increased and subdivided. The carrier
who receives goods is very often not the one who is expected to
deliver them to the ultimate consignees. He is but one link of a
chain. Thus, his hazard is greatly increased. His employers demand
that he shall be held responsible not merely for his own acts and
omissions and those of his agents, but for those of other carriers
whom he necessarily employs for completing the transit of the
goods. Hence, as we have said, it is now the settled law that the
responsibility of a common carrier may be limited by an express
agreement made with his employer at the time of his accepting goods
for transportation, provided the limitation be such as the law can
recognize as reasonable and not inconsistent with sound public
policy. This subject has been so fully considered of late in this
Court that it is needless to review the authorities at large. In
York Company v. Central Railroad Company, [
Footnote 1] it is ruled that the common law
liability of a common carrier may be limited and qualified by
special contract with the owner, provided such special contract do
not attempt to cover losses by negligence or misconduct. And in a
still later case,
Railroad Company v. Lockwood, [
Footnote 2]
Page 88 U. S. 268
where the decisions are extensively reviewed, the same doctrine
is asserted. The latter case, it is true, involved mainly an
inquiry into the reasonableness of an exception stipulated for, but
it unequivocally accepted the rule asserted in the first-mentioned
case. The question, then, which is presented to us by this record
is whether the stipulation asserted in the defendant's plea is a
reasonable one not inconsistent with sound public policy.
It may be remarked in the first place that the stipulation is
not a conventional limitation of the right of the carrier's
employer to sue. He is left at liberty to sue at any time within
the period fixed by the statute of limitations. He is only required
to make his claim within ninety days, in season to enable the
carrier to ascertain what the facts are, and having made his claim,
he may delay his suit.
It may also be remarked that the contract is not a stipulation
for exemption from responsibility for the defendants' negligence or
for that of their servants. If is freely conceded that had it been
such, it would have been against the policy of the law and
inoperative. Such was our opinion in
Railroad Company v.
Lockwood. A common carrier is always responsible for his
negligence, no matter what his stipulations may be. But an
agreement that in case of failure by the carrier to deliver the
goods, a claim shall be made by the bailor or by the consignee
within a specified period if that period be a reasonable one is
altogether of a different character. It contravenes no public
policy. It excuses no negligence. It is perfectly consistent with
holding the carrier to the fullest measure of good faith, of
diligence, and of capacity which the strictest rules of the common
law ever required. And it is intrinsically just as applied to the
present case. The defendants are an express company. We cannot
close our eyes to the nature of their business. They carry small
parcels, easily lost or mislaid and not easily traced. They carry
them in great numbers. Express companies are modern conveniences,
and notoriously they are very largely employed. They may carry --
they often do carry -- hundreds, even thousands of packages
Page 88 U. S. 269
daily. If one be lost, or alleged to be lost, the difficulty of
tracing it is increased by the fact that so many are carried, and
it becomes greater the longer the search is delayed. If a bailor
may delay giving notice to them of a loss, or making a claim
indefinitely, they may not be able to trace the parcels bailed, and
to recover them, if accidentally missent, or if they have in fact
been properly delivered. With the bailor the bailment is a single
transaction, of which he has full knowledge; with the bailee, it is
one of a multitude. There is no hardship in requiring the bailor to
give notice of the loss if any, or make a claim for compensation
within a reasonable time after he has delivered the parcel to the
carrier. There is great hardship in requiring the carrier to
account for the parcel long after that time, when he has had no
notice of any failure of difficult, if not impossible when the
lapse of time has made it difficult, if not impossible to ascertain
the actual facts. For these reasons, such limitations have been
held valid in similar contracts, even when they seem to be less
reasonable than in the contracts of common carriers.
Policies of fire insurance, it is well known, usually contain
stipulations that the insured shall give notice of a loss and
furnish proofs thereof within a brief period after the fire, and it
is undoubted that if such notice and proofs have not been given in
the time designated or have not been waived, the insurers are not
liable. Such conditions have always been considered reasonable,
because they give the insurers an opportunity of inquiring into the
circumstances and amount of the loss, at a time when inquiry may be
of service. And still more, conditions in policies of fire
insurance that no action shall be brought for the recovery of a
loss unless it shall be commenced within a specified time, less
than the statutory period of limitations, are enforced, as not
against any legal policy. [
Footnote
3]
Telegraph companies, though not common carriers, are
Page 88 U. S. 270
engaged in a business that is in its nature almost, if not
quite, as important to the public as is that of carriers. Like
common carriers they cannot contract with their employers for
exemption from liability for the consequences of their own
negligence. But they may by such contracts, or by their rules and
regulations brought to the knowledge of their employers, limit the
measure of their responsibility to a reasonable extent. Whether
their rules are reasonable or unreasonable must be determined with
reference to public policy, precisely as in the case of a carrier.
And in
Wolf v. Western Union Telegraph Company, [
Footnote 4] a case where one of the
conditions of a telegraph company, printed in their blank forms,
was that the company would not be liable for damages in any case
where the claim was not presented in writing within sixty days
after sending the message, it was ruled that the condition was
binding on an employer of the company who sent his message on the
printed form. The condition printed in the form was considered a
reasonable one, and it was held that the employer must make claim
according to the condition before he could maintain an action.
Exactly the same doctrine was asserted in
Young v. Western
Union Telegraph Company. [
Footnote 5]
In
Lewis v. Great Western Railway Company, [
Footnote 6] which was an action against
the company as common carriers, the court sustained as reasonable
stipulations in a bill of lading, that
"no claim for deficiency, damage, or detention would be allowed,
unless made within three days after the delivery of the goods, nor
for loss, unless made within seven days from the time they should
have been delivered."
Under the last clause of this condition the onus was imposed
upon the shipper of ascertaining whether the goods had been
delivered at the time they should have been, and in case they had
not, of making his claim within seven days thereafter. In the case
we have now in hand the agreement pleaded allowed ninety days from
the delivery of the parcel to the
Page 88 U. S. 271
company, within which the claim might be made, and no claim was
made until four years thereafter. Possibly such a condition might
be regarded as unreasonable, if an insufficient time were allowed
for the shipper to learn whether the carrier's contract had been
performed. But that cannot be claimed here. The parcel was received
at Jackson, Tennessee, for delivery at New Orleans. The transit
required only about one day. We think, therefore, the limitation of
the defendants' common law liability to which the parties agreed,
as averred in the plea, was a reasonable one, and that the plea set
up a sufficient defense to the action.
We have been referred to one case which seems to intimate, and
perhaps should be regarded as deciding that a stipulation somewhat
like that pleaded here is insufficient to protect the carrier. It
is the
Southern Express Company v. Caperton. [
Footnote 7] There the receipts for the
goods contained a provision that there should be no liability for
any loss unless the claim therefor should be made in writing, at
the office of the company at Stevenson, within thirty days from the
date of the receipt, in a statement to which the receipt should be
annexed. The receipt was signed by the agent of the company alone.
It will be observed that it was a much more onerous requirement of
the shipper than that made in the present case, and more than was
necessary to give notice of the loss to the carrier. The court,
after remarking that a carrier cannot avoid his responsibility by
any mere general notice, nor contract for exemption from liability
for his negligence or that of his servants, added that he could not
be allowed to make a statute of limitations so short as to be
capable of becoming a means of fraud; that it was the duty of
the
"defendant to deliver the package to the consignee, and that it
was more than unreasonable to allow it to appropriate the property
of another by a failure to perform a duty, and that too under the
protection of a writing signed only by its agent, the assent to
which by the other party was only proven by his acceptance of the
paper.
Page 88 U. S. 272
This case is a very unsatisfactory one. It appears to have
regarded the stipulation as a statute of limitations, which it
clearly was not, and it leaves us in doubt whether the decision was
not rested on the ground that there was no sufficient evidence of a
contract. The case cited from 36 Ga. 532, has no relation to the
question before us. It has reference to the inquiry, what is
sufficient proof of an agreement between the shipper and the
carrier, an inquiry that does not arise in the present case, for
the demurrer admits an express agreement."
Our conclusion, then, founded upon the analogous decisions of
courts, as well as upon sound reason, is that the express agreement
between the parties averred in the plea was a reasonable one, and
hence that it was not against the policy of the law. It purported
to relieve the defendants from no part of the obligations of a
common carrier. They were bound to the same diligence, fidelity,
and care as they would have been required to exercise if no such
agreement had been made. All that the stipulation required was that
the shipper, in case the package was lost or damaged, should assert
his claim in season to enable the defendants to ascertain the facts
-- in other words, that he should assert it within ninety days. It
follows that the circuit court erred in sustaining the plaintiff's
demurrer to the plea.
Judgment reversed and the cause remanded for further
proceedings in conformity with this opinion.
[
Footnote 1]
70 U. S. 3 Wall.
107.
[
Footnote 2]
84 U. S. 17 Wall.
357.
[
Footnote 3]
See Riddlesbarger v. Hartford
Insurance Company, 7 Wall. 386, and the numerous
cases therein cited.
[
Footnote 4]
62 Pa.St. 83.
[
Footnote 5]
34 N.Y.Sup.Ct. 390.
[
Footnote 6]
5 H.& N. 867.
[
Footnote 7]
44 Ala. 101.