A provision in a bill of lading issued by the initial carrier,
that it should not be liable for loss or damage not occurring on
its portion of the route, is not a contract of exemption from its
own liability as a carrier, but a provision of nonassumption of the
liabilities of others, and, at common law, relieves it of such
liabilities.
The general rule adopted by this Court is that, in the absence
of legislation, a carrier, unless there be a special contract, is
only bound to carry over its own line and then deliver to a
connecting carrier; it may, however, contract to carry beyond its
line, and if it does so, its common law carrier liability extends
over the entire route.
It was not only the legal elements of the situation, but also
the fact that the business prosperity of the country largely
depends on through rates and routes of transportation, that induced
Congress to enact such regulations in regard to the duties and
liabilities of interstate carriers as would relieve shippers whose
goods were damaged from the burden of proving where the loss
occurred.
There is no absolute freedom of contract. The government may
deny liberty of contract by regulating or forbidding every contract
reasonably calculated to injuriously affect public interests.
The United States is a government of limited and delegated
powers, but in respect to the powers delegated, including that to
regulate commerce between the states, the power is absolute except
as limited by other provisions of the Constitution.
Congress has power to prohibit a carrier engaged in interstate
commerce from limiting by contract it liability beyond its own
line,
Page 219 U. S. 187
and the Carmack Amendment of January 29, 1906, C. 3591, 34 Stat.
584, 595, to § 20 of the Interstate Commerce Act, making such
carriers liable for loss or damage to merchandise received for
interstate transportation beyond their own lines, notwithstanding
any contract of exemption in the bill of lading, is a valid
exercise of such power and is not in conflict with the due process
provision of the Fifth Amendment.
Quaere, and not decided, whether a carrier can be
compelled to accept goods for transportation beyond its own lines
or be required to make a through or joint rate over independent
lines.
Under the Carmack Amendment to the Interstate Commerce Act, the
initial carrier is, as principal, liable not only for its own
negligence, but that of any agency which it may use, although as
between themselves the carrier actually causing the loss may be
primarily liable. Section 8 of the Act to Regulate Commerce of
February 4, 1887, c. 104, 24 Stat. 379, 382, does not authorize the
taxing of an attorney's fee in an action to recover damages for
loss to goods which does not result from a violation of the
act.
168 F. 987 and 990 affirmed.
This was an action to recover the value of goods received by the
Atlantic Coast Line Railroad at a point on its line in the State of
Georgia for transportation to points in other states. The agreed
statement of facts showed that the goods were safely delivered by
the Atlantic Coast Line Railroad to connecting carriers, and were
lost while in the care of such carriers, and the question is
whether the initial carrier is liable for such loss.
The stipulated facts showed that the goods were tendered to the
Atlantic Coast Line Railroad, and through bills of lading demanded
therefor, which were duly issued, as averred, on the dates named in
the petition. That the goods so received were forwarded over the
lines of the receiving road and in due course delivered to a
connecting carrier engaged in interstate shipment for continuance
of the transportation. It was also stipulated
"that the Riverside Mill made constant and frequent shipments
over the Atlantic Coast Line, and had a blank form of receipt, like
the attached, marked 'A,' which the
Page 219 U. S. 188
Riverside Mill filled out, showing what goods it had loaded into
cars, and the name of the consignee; said receipt containing a
stipulation that the shipment is 'per conditions of the company's
bill of lading,' and that the Atlantic Coast Line Railroad Company,
on said receipts prepared by the Riverside Mill, issued, for each
of the shipments hereinbefore referred to, bills, of lading on
forms like that attached, marked exhibit 'B.'"
Upon the reverse side of the bill of lading were certain
conditions, one of which was that "no carrier shall be liable for
loss or damage not occurring on its portion of the route." The
tenth clause thereof was in these words:
"This bill of lading is signed for the different carriers who
may engage in the transportation, severally, but not jointly, each
of which is to be bound by and have the benefits of the provisions
thereof, and in accepting this bill of lading the shipper, owner,
and consignee of the goods, and the holder of the bill of lading,
agree to be bound by all its stipulations, exceptions, and
conditions, whether printed or written."
The court below, upon this state of facts, instructed a verdict
for the plaintiff, upon which there was judgment for the amount of
the verdict, and, upon motion of the plaintiff, an attorney's fee
of $100 was ordered to be taxed as part of the costs in the case.
Thereupon error was assigned, and this writ of error sued out by
the railroad company.
Page 219 U. S. 194
After making the above statement, MR. JUSTICE LURTON delivered
the opinion of the Court.
The goods of the defendants in error were lost by a connecting
carrier to whom they had been safely delivered. Though received for
a point beyond its own line, and for a point on the line of a
succeeding carrier, there was no agreement for their safe carriage
beyond the line of the plaintiff in error, but, upon the contrary,
an express
Page 219 U. S. 195
agreement that the initial carrier should not be liable for "a
loss or damage not occurring on its own portion of the route." Such
a provision is not a contract for exemption from a carrier's
liability as such, but a provision making plain that it did not
assume the obligation of a carrier beyond its own line, and that
each succeeding carrier in the route was but the agent of the
shipper for a continuance of the transportation. It is therefore
obvious that, at the common law, an initial carrier under such a
state of facts would not be liable for a loss through the fault of
a connecting carrier to whom it had, in due course, safely
delivered the goods for further transportation.
Railroad
v. Pratt, 22 Wall. 123;
Myrick v.
Railroad, 107 U. S. 102;
Southern Pac. Ry. Co. v. Interstate Commerce Commission,
200 U. S. 536,
200 U. S. 554.
Liability is confessedly dependent upon the provision of the Act of
Congress regulating commerce between the states, known as the
Carmack Amendment of June 29, 1906, 34 Stat. 584, 595, c. 3591. The
twentieth section of the Act of February 4, 1887, 24 Stat. 379, c.
104, as changed by the Carmack Amendment, reads as follows:
"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 section shall deprive any holder of such receipt or bill of
lading of any remedy or right of action which he has under existing
law. "
Page 219 U. S. 196
"That the common carrier, railroad, or transportation company
issuing such receipt or bill of lading shall be entitled to recover
from the common carrier, railroad, or transportation company on
whose line the loss, damage, or injury shall have been sustained
the amount of such loss, damage, or injury as it may be required to
pay to the owners of such property, as may be evidenced by any
receipt, judgment, or transcript thereof."
The power of Congress to enact this legislation has been denied
first because it is said to deprive the carrier and the shipper of
their common law power to make a just and reasonable contract in
respect to goods to be carried to points beyond the line of the
interstate carrier, and second that, in casting liability upon the
initial carrier for loss or damage upon the line of a connecting
carrier, the former is deprived of its property without due process
of law.
The indisputable effect of the Carmack Amendment is to hold the
initial carrier engaged in interstate commerce and "receiving
property for transportation from a point in one state to a point in
another state" as having contracted for through carriage to the
point of destination, using the lines of connecting carriers as its
agents.
Independently of the Carmack Amendment, the carrier, when
tendered property for such transportation, might elect to contract
to carry to destination, in which case it necessarily agreed to do
so through the agency of other and independent carriers in the
line, or it might elect to carry safely over its own lines only,
and then deliver to the next carrier, who would then become the
agent of the shipper. In the first case the receiving carrier's
liability as carrier extends over the whole route, for, on obvious
grounds, the principal is liable for the acts of its agent. In the
other case, its carrier liability ends at its own terminal, and its
further liability is merely that of a forwarder. Having this power
to make the one or the
Page 219 U. S. 197
other contract, the only question which has occasioned a
conflict in the decided cases was whether it, in the particular
case, made the one or the other.
The general doctrine accepted by this Court in the absence of
legislation is that a carrier, unless there be a special contract,
is only bound to carry over its own line, and then deliver to a
connecting carrier. That such an initial carrier might contract to
carry over the whole route was never doubted. It is equally
indisputable that, if it does so contract, its common law carrier
liability will extend over the entire route.
Railway v.
McCarthy, 96 U. S. 258,
96 U. S. 266;
Railroad v.
Pratt, 12 Wall. 123;
Railroad v. American
Trading Co., 195 U. S. 439;
Muschamp v. Lancaster Railway Co., 8 M. & W. 421.
The English cases, beginning with
Muschamp v. Lancaster
Railway Company, 8 M. & W. 421, decided in 1841, down to
Bristol &c. Railway v. Collins, 7 H.L. Cases 194, have
consistently held that the mere receipt of property for
transportation to a point beyond the line of the receiving carrier,
without any qualifying agreement, justified an inference of an
agreement for through transportation, and an assumption of full
carrier liability by the primary carrier. The ruling is grounded
upon considerations of public policy and public convenience, and
classes the receipt of goods so designated for a point beyond the
carrier line as a holding out to the public that the carrier has
made its own arrangements for the continuance by a connecting
carrier of the transportation after the goods leave its own line.
There are American cases which take the same view of the question
of evidence thus presented. Some of them are
Railroad v.
Campbell, 7 Heisk. 257;
Railroad v. Mt. Vernon Co.,
84 Ala. 175;
Railroad v. Hasselkus, 91 Ga. 384;
Beard
v. Railroad, 79 Ia. 531;
Kyle v. Railroad, 10 Rich.
382;
Railroad v. Wilcox, 84 Ill. 240;
Railroad v.
Rogers & Hartsell,, 6 Heisk. 143.
Page 219 U. S. 198
Upon the other hand, many American courts have repudiated the
English rule which holds the carrier to a contract for
transportation over the whole route in the absence of a contract
clearly otherwise, and have adopted the rule that, unless the
carrier specifically agrees to carry over the whole route, its
responsibility as a carrier ends with its own line, and that, for
the continuance of the shipment, its liability is only that of a
forwarder. The conflict has therefore been one as to the evidence
from which a contract for through carriage to a place beyond the
line of the receiving carrier might be inferred.
In this conflicting condition of the decisions as to the
circumstances from which an agreement for through transportation of
property designated to a point beyond the receiving carrier's line
might be inferred, Congress, by the act here involved, has declared
in substance that the act of receiving property for transportation
to a point in another state and beyond the line of the receiving
carrier shall impose on such receiving carrier the obligation of
through transportation, with carrier liability throughout. But this
uncertainty of the nature and extent of the liability of a carrier
receiving goods destined to a point beyond its own line was not all
which might well induce the interposition of the regulating power
of Congress. Nothing has perhaps contributed more to the wealth and
prosperity of the country than the almost universal practice of
transportation companies to cooperate in making through routes and
joint rates. Through this method, a situation has been brought
about by which, though independently managed, connecting carriers
become in effect one system. This practice has its origin in the
mutual interests of such companies and in the necessities of an
expanding commerce.
In the leading case of
Muschamp v. Lancaster Railway
Company, cited above, Lord Abinger defended the inference of a
contract for through carriage from the mere
Page 219 U. S. 199
receipt of a package destined to a point beyond the line of the
receiving carrier upon the known practice in his day of such
carriers. Upon this subject, in speaking of connecting lines of
railway, he said:
"These railway companies, though separate in themselves, are in
the habit, for their own advantage, of making contracts, of which
this was one, to convey goods along the whole line to the ultimate
terminus, each of them being agents of the other to carry them
forward, and each receiving their share of the profits from the
last."
The tenth clause of the conditions annexed to this bill of
lading, and shown elsewhere, affords a fair illustration of the
customary methods of connecting carriers to cooperate for their
mutual benefit in carrying on transportation begun by one which
must be continued by other lines over which the thing to be
transported must go. The receiving carrier makes the rate and the
route, and as the agent of every such connecting carrier executes a
contract which is to bind each of them, "severally, but not
jointly," one of the terms of the agreement being that each carrier
shall be liable only for loss or damage occurring on its own line.
Through this well known and necessary practice of connecting
carriers, there has come about, without unity of ownership or
physical operation, a singleness of charge and a continuity of
transportation greatly to the advantage of the carrier, and
beneficial to the great and growing commerce of the country.
Along with this singleness of rate and continuity of carriage
there grew up the practice by receiving carriers, illustrated in
this case, of refusing to make a specific agreement to transport to
points beyond its own line, whereby the connecting carrier, for the
purpose of carriage, would become the agent of the primary carrier.
The common form of receipt, as the court may judicially know, is
one by which the shipper is compelled to make with each carrier in
the route over which his package
Page 219 U. S. 200
must go a separate agreement limiting the carrier liability of
each separate company to its own part of the through route. As a
result, the shipper could look only to the initial carrier for
recompense for loss, damage, or delay occurring on its part of the
route. If such primary carrier was able to show a delivery to the
rails of the next succeeding carrier, although the packages might
and usually did continue the journey in the same car in which they
had been originally loaded, the shipper must fail in his suit. He
might, it is true, then bring his action against the carrier so
shown to have next received the shipment. But here, in turn, he
might be met by proof of safe delivery to a third separate carrier.
In short, as the shipper was not himself in possession of the
information as to when and where his property had been lost or
damaged, and had no access to the records of the connecting
carriers who, in turn, had participated in some part of the
transportation, he was compelled in many instances to make such
settlement as should be proposed.
This burdensome situation of the shipping public in reference to
interstate shipments over routes including separate lines of
carriers was the matter which Congress undertook to regulate. Thus,
when this Carmack Amendment was reported by a conference committee,
Judge William Richardson, a congressman from Alabama, speaking for
the committee of the matter which it was sought to remedy, among
other things, said:
"One of the great complaints of the railroads has been -- and, I
think, a reasonable, just, and fair complaint -- that when a man
made a shipment, say, from Washington, for instance, to San
Francisco, California, and his shipment was lost in some way, the
citizen had to go thousands of miles, probably, to institute his
suit. The result was that he had to settle his damages at what he
could get. What have we done? We have made the initial carrier, the
carrier that takes and receives the shipment, responsible
Page 219 U. S. 201
for the loss of the article in the way of damages. We save the
shipper from going to California or some distant place to institute
his suit. Why? The reasons inducing us to do that were that the
initial carrier has a through route connection with the secondary
carrier, on whose route the loss occurred, and a settlement between
them will be an easy matter, while the shipper would be at heavy
expense in the institution of a suit. If a judgment is obtained
against the initial carrier, no doubt exists but that the secondary
carrier would pay it at once. Why? Because the arrangement, the
concert, the cooperation, the through route courtesies between
them, would be broken up if prompt payment were not made. We have
done that in conference."
40 Cong.Rec. Pt. 10, p. 9580.
It must be conceded that the effect of the act in respect of
carriers receiving packages in one state for a point in another,
and beyond its own lines, is to deny to such an initial carrier the
former right to make a contract limiting liability to its own line.
This, it is said, is a denial of the liberty of contract secured by
the Fifth Amendment to the Constitution. To support this, counsel
cited such cases as
Allgeyer v. Louisiana, 165
U. S. 589;
Lochner v. New York, 198 U. S.
45, and
Adair v. United States, 208 U.
S. 161.
This power to regulate is the right to prescribe the rules under
which such commerce may be conducted. "It is," said Chief Justice
Marshall, in
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 196,
"the power . . . vested in Congress as absolutely as it would be
in a single government having in its Constitution the same
restrictions on the exercise of the power as are found in the
Constitution of the United States."
It is a power which extends to the regulation of the appliances
and machinery and agencies by which such commerce is conducted.
Thus, in
Johnson v. Southern Pac. Ry., 196 U. S.
1, an act prescribing safety appliances
Page 219 U. S. 202
was upheld. And in
Interstate Commerce Commission v.
Illinois Central R. Co., 215 U. S. 452, it
was held that the equipment of an interstate railway, including
cars used for the transportation of its own fuel, was subject to
the regulation of Congress. In
Interstate Commerce Commission
v. C. & A. Ry. Co., 215 U. S. 479, it
was held to extend to the distribution of coal cars to the shipper,
so as to prevent discrimination. In
The Employers' Liability
Cases, 207 U. S. 463,
power to pass an act which regulated the relation of master and
servant, so as to impose on the carrier, while engaged in
interstate commerce, liability for the negligence of a fellow
servant, for which at common law there was no liability, and
depriving such carrier of the common law defense of contributory
negligence save by way of reduction of damages, was upheld. In
Addyston Pipe & Steel Co. v. United States,
175 U. S. 211, and
Northern Securities Co. v. United states, 193 U.
S. 197, it was held that this power of regulation
extended to and embraced contracts in restraint of trade between
the states.
It is obvious from the many decisions of this Court that there
is no such thing as absolute freedom of contract. Contracts which
contravene public policy cannot be lawfully made at all, and the
power to make contracts may in all cases be regulated as to form,
evidence, and validity as to third persons. The power of government
extends to the denial of liberty of contract to the extent of
forbidding or regulating every contract which is reasonably
calculated to injuriously affect the public interests. Undoubtedly
the United States is a government of limited and delegated powers,
but in respect of those powers which have been expressly delegated,
the power to regulate commerce between the states being one of
them, the power is absolute except as limited by other provisions
of the Constitution itself.
Having the express power to make rules for the conduct
Page 219 U. S. 203
of commerce among the states, the range of congressional
discretion as to the regulation best adapted to remedy a practice
found inefficient or hurtful is a wide one. If the regulating act
be one directly applicable to such commerce, not obnoxious to any
other provision of the Constitution, and reasonably adapted to the
purpose by reason of legitimate relation between such commerce and
the rule provided, the question of power is foreclosed. "The test
of power," said MR. JUSTICE WHITE, speaking for this Court in the
Employers' Liability Cases, cited above,
"is not merely the matter regulated, but whether the regulation
is directly one of interstate commerce, or is embraced within the
grant [of power] conferred on Congress to use all lawful means
necessary and appropriate to the execution of the power to regulate
commerce."
That a situation had come about which demanded regulation in the
public interest was the judgment of Congress. The requirement that
carriers who undertook to engage in interstate transportation, and
as a part of that business held themselves out as receiving
packages destined to places beyond their own terminal, should be
required, as a condition of continuing in that traffic, to obligate
themselves to carry to the point of destination, using the lines of
connecting carriers as their own agencies, was not beyond the scope
of the power of regulation. The rule is adapted to secure the
rights of the shipper by securing unity of transportation with
unity of responsibility. The regulation is one which also
facilitates the remedy of one who sustains a loss, by localizing
the responsible carrier. Neither does the regulation impose an
unreasonable burden upon the receiving carrier. The methods in
vogue, as the Court may judicially know, embrace not only the
voluntary arrangement of through routes and rates, but the
collection of the single charge made by the carrier at one or the
other end of the route. This involves frequent and prompt
settlement of traffic
Page 219 U. S. 204
balances. The routing in a measure depends upon the certainty
and promptness of such traffic balance settlements, and such
balances have been regarded as debts of a preferred character when
there is a receivership. Again, the business association of such
carriers affords to each facilities for locating primary
responsibility as between themselves which the shipper cannot have.
These well known conditions afford a reasonable security to the
receiving carrier for a reimbursement of a carrier liability which
should fall upon one of the connecting carriers as between
themselves.
But it is said that any security resulting from a voluntary
agreement constituting a through route and rate is destroyed if the
receiving carrier is not at liberty to select his own agencies for
a continuance of the transportation beyond his own line. This is an
objection which has no application to the present case. This action
was for loss and damage arising from several distinct shipments to
different places beyond the line of the plaintiff in error, who was
the initial or receiving carrier. The presumption, from the absence
of anything to the contrary in the record, is that the routing was
over connecting lines with whom the plaintiff in error had
theretofore made its own arrangements and rate. This record
presents no question as to the right of the initial carrier to
refuse a shipment designated for a point beyond its own line, nor
its right to refuse to make a through route or joint rate when such
route and rate would involve the continuance of a transportation
over independent lines. We therefore refrain from any consideration
of the large question thus suggested. The shipments involved in the
present case were voluntarily received by an initial carrier who
undertook to escape carrier's liability beyond its own line by a
provision limiting liability to loss upon its own line. This was
forbidden by the Carmack Amendment, and any stipulation and
condition in the
Page 219 U. S. 205
special receipt which contravenes the rule in question is
invalid.
Reduced to the final results, the Congress has said that a
receiving carrier, in spite of any stipulation to the contrary,
shall be deemed, when it receives property in one state, to be
transported to a point in another, involving the use of a
connecting carrier for some part of the way, to have adopted such
other carrier as its agent, and to incur carrier liability
throughout the entire route, with the right to reimbursement for a
loss not due to his own negligence. The conditions which justified
this extension of carrier liability we have already adverted to.
The rule of the common law which treated a common carrier as an
insurer grew out of a situation which required that kind of
security for the protection of the public. To quote the quaint but
expressive words of Lord Holt, in
Coggs v. Bernard, 2
Ld.Raymond 909, when defending and applying the doctrine of
absolute liability against loss not due to the act of God or the
public enemy, "This rule," said he,
"is a politick establishment contrived by the policy of the law
for the safety of all persons the necessity of whose affairs oblige
them to trust these sorts of persons, that they may be safe in
their ways of dealing."
If it is to be assumed that the ultimate power exerted by
Congress is that of compelling cooperation by connecting lines of
independent carriers for purposes of interstate transportation, the
power is still not beyond the regulating power of Congress, since,
without merging identity of separate lines or operation, it stops
with the requirement of oneness of charge, continuity of
transportation, and primary liability of the receiving carrier to
the shipper, with the right of reimbursement from the guilty agency
in the route. That there is some chance that this right of
recoupment may not be always effective may be conceded without
invalidating the regulation. If the
Page 219 U. S. 206
power existed and the regulation is adapted to the purpose in
view, the public advantage justifies the discretion exercised, and
upholds the legislation as within the limit of the grant conferred
upon Congress. Touching the range of legislative discretion of the
states in respect to occupations or trades which are affected by a
public use, this Court, in
Gundling v. Chicago,
177 U. S. 183,
177 U. S. 188,
said:
"Unless the regulations are so utterly unreasonable and
extravagant in their nature and purpose that the property and
personal rights of the citizen are unnecessarily, and in a manner
wholly arbitrary, interfered with or destroyed without due process
of law, they do not extend beyond the power of the state to pass,
and they form no subject for federal interference. As stated in
Crowley v. Christensen, 137 U. S. 86:"
"The possession and enjoyment of all rights are subject to such
reasonable conditions as may be deemed by the governing authority
of the country essential to the safety, health, peace, good order,
and morals of the community."
But it is said that the act violates the Fifth Amendment by
taking the property of the initial carrier to pay the debt of an
independent connecting carrier whose negligence may have been the
sole cause of the loss. But this contention results from a surface
reading of the act, and misses the true basis upon which it rests.
The liability of the receiving carrier which results in such a case
is that of a principal for the negligence of his own agents.
In substance, Congress has said to such carriers:
"If you receive articles for transportation from a point in one
state to a place in another, beyond your own terminal, you must do
so under a contract to transport to the place designated. If you
are obliged to use the services of independent carriers in the
continuance of the transit, you must use them as your own agents,
and not as agents of the shipper."
It is therefore not the case of making one pay the debt of
another. The receiving
Page 219 U. S. 207
carrier is, as principal, liable not only for its own
negligence, but for that of any agency it may use, although, as
between themselves, the company actually causing the loss may be
primarily liable.
In
Seaboard Air Line v. Seegers, 207 U. S.
73,
207 U. S. 78,
legislation by the State of Georgia imposing a penalty on common
carriers for failure to adjust damage claims within forty days was
held to neither deny due process nor the equal protection of the
law. Speaking by Mr. Justice Brewer, the Court said of the
reasonableness of the requirement and classification, that
"the matter to be adjusted is one peculiarly within the
knowledge of the carrier. It receives the goods and has them in its
custody until the carriage is completed. It knows what it received
and what it delivered. It knows what injury was done during the
shipment, and how it was done. The consignee may not know what was
in fact delivered at the time of the shipment, and the shipper may
not know what was delivered to the consignee at the close of the
transportation. The carrier can determine the amount of the loss
more accurately and promptly and with less delay and expense than
anyone else, and for the adjustment of loss or damage to shipments
within the state forty days cannot be said to be an unreasonably
short length of time."
The conclusion we reach in respect to the validity of the
amendment has the support of some well considered cases. Among them
we cite:
Smeltzer v. Railroad, 158 F. 649;
Railroad v.
Mitchell, 91 N.E. 735;
Railroad v. Scott, 133 Ky.
724.
The judgment included an attorneys' fee, taxed as part of the
costs. The authority for this is supposed to be found in the eighth
section of the Act to Regulate Commerce of February 4, 1887, 24
Stat. pp. 379, 382, c. 104. The section reads as follows:
"That in case any common carrier subject to the provisions
Page 219 U. S. 208
of this act shall do, cause to be done, or permit to be done,
any act, matter, or thing in this act prohibited or declared to be
unlawful, or shall omit to do any act, matter, or thing in this act
required to be done, such common carrier shall be liable to the
person or persons injured thereby for the full amount of damages
sustained in consequence of any such violation of the provisions of
this act, together with a reasonable counsel or attorneys' fee, to
be fixed by the court in every case of recovery, which attorneys'
fees shall be taxed and collected as part of the costs in the
case."
But that section applies to cases where the cause of action is
the doing of something made unlawful by some provision of the act,
or the omission to do something required by the act, and there is a
recovery "of damages sustained in consequence of any such violation
of this act," etc. The cause of action in the present case is not
for damages resulting from "any violation of the provisions of this
act." True, the plaintiff in error attempted by contract to
stipulate for a limitation of liability to a loss on its own line,
and in this action has defensively denied liability for a loss not
occurring on its own line. But the cause of action was the loss of
the plaintiff's property which had been entrusted to it as a common
carrier, and that loss is in no way traceable to the violation of
any provision of the Act to Regulate Commerce. Having sustained no
damage which was a consequence of the violation of the act, the
section has no application to this case.
The judgment was erroneous to this extent, and the provision for
an attorneys' fee is stricken out, and the judgment thus modified
is
Affirmed.