(253 U. S. 97)

of the grain at the place of destination at CHICAGO, M. & ST. P. RY. CO. v. Mc- the time when it should have been delivered,

CAULL-DINSMORE CO.

(Argued and Submitted April 23, 1920. cided May 17, 1920.)

No. 628.

with interest, less freight charges, was $1,De- 422.11. The plaintiff claimed the difference between the two sums on the ground that the Cummins Amendment to the Interstate Commerce Act made the above stipulation void. The District Court gave judgment for the plaintiff, 252 Fed. 664, and the judgment was affirmed by the Circuit Court of Appeals. 260 Fed. 835.

1. STATUTES 219-COURTS NOT BOUND BY RULING OF INTERSTATE COMMERCE COMMIS

SION AS TO VALIDITY OF BILL OF LADING. Whether a provision of a bill of lading, requiring loss or damage to be measured by the value of the property at the place and time of shipment, including freight charges, violates the statute, is a question as to the meaning of the statute which the courts must decide for

themselves, regardless of the determination of the Interstate Commerce Commission that the

rule is reasonable.

#99

Act of

[1] *The Cummins Amendment March 4, 1915, c. 176, 38 Stat. 1196 (Comp. St. § 8604a), provides that the carriers affect. ed by the Act shall issue a bill of lading and shall be liable to the lawful holder of it "for any loss, damage, or injury to such property and no contract, receipt, rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier * from the liability hereby imposed"

*

*

A provision of a bill of lading issued in November, 1915, for an interstate shipment, and further that the carrier "shall be liable requiring the amount of any loss or damage to be computed on the basis of the value of the property at the place and time of shipment, including freight charges, violates Act March 4, 1915 (Comp. St. § 8604a), making carriers liable for the full actual loss, notwithstanding any limitation of liability or of the amount of recovery, where the actual loss was more than the amount recoverable thereunder.

The Chief Justice dissenting.

On Writ of Certiorari to the United States Circuit Court of Appeals, Eighth Circuit. Action by the McCaull-Dinsmore Company against the Chicago, Milwaukee & St. Paul Railway Company. A judgment for plaintiff (252 Fed. 664) was affirmed by the Circuit Court of Appeals (260 Fed. 835), and defendant brings certiorari. Affirmed. See, also, 251 U. S. 549, 40 Sup. Ct. 219, 64

L. Ed.

*98

for the full actual loss, damage, or injury notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading. or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is hereby declared to be unlawful and void." Before the passage of this amendment the Interstate Commerce Commission had upheld the clause in the bill of lading as in no way limiting the carriers' liability to less than the value of the goods, but merely offering the most convenient way of finding the value. Shaffer v. Chicago, Rock Island & Pacific Ry. Co., 21 I. C. C. 8, 12. In a subsequent report upon the amendment it considered that the clause was still valid and not forbidden by

*Mr. O. W. Dynes, of Chicago, Ill., for peti- the law. 33 I. C. C. 682, 693. The argutioner.

ment for the petitioner suggests that courts

Mr. J. O. P. Wheelwright, of Minneapolis, are bound by the Commission's determination Minn., for respondent.

Mr. Justice HOLMES delivered the opinion of the Court.

This is an action for the loss of grain belonging to the plaintiff and delivered on November 17, 1915, to the defendant, the petitioner, in Montana, for transportation to Omaha, Nebraska. The grain was shipped under the uniform bill of lading, part of the tariffs filed with the Interstate Commerce Commission, by which it was provided that

"the amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment under this bill of lading, including freight charges, if paid." The petitioner has paid $1,200.48, being the amount of the loss so computed, but the value

that the rule is a reasonable one. But the question is of the meaning of a statute and upon that, of course, the courts must decide for themselves.

[2] We appreciate the convenience of the stipulation in the bill of lading and the arguments urged in its favor. We understand that it does not necessarily prevent a recovery of the full actual loss, and that if the price of wheat had gone down the carrier might have had to pay more under this contract than by the common law rule. But the

*100

*question is how the contract operates upon this case. In this case it does prevent a recovery of the full actual loss, if it is enforeed. The rule of the common law is not an arbitrary fiat but an embodiment of the plain fact that the actual loss caused by breach of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

a contract is the loss of what the contractee would have had if the contract had been performed, less the proper deductions, which have been made and are not in question here. It seems to us, therefore, that the decision below was right, and as, in our opinion, the conclusion is required by the statute, neither the convenience of the clause, nor any argument based upon the history of the statute or upon the policy of the later Act of August 9, 1916, c. 301, 39 Stat. 441 (Comp. St. §§ 8592, 8604a) can prevail against what we understand to be the meaning of the words. Those words seem not only to indicate broad general purpose but to apply specifically to this very case.

fourth, eighteen hundred and eighty-seven,, and all acts amendatory thereof, and to enlarge the powers of the Interstate Commerce Commission,' approved June twenty-ninth, nineteen hundred and six, as reads as follows, to wit:

""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 a 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, railroad, or transportation company from the liaor regulation shall exempt such common carrier, ability 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,' be, and the same is hereby, amended so as to read as follows, to wit:

"That any common carrier, railroad, or trans

The Chief Justice dissents for the reasons stated by the Interstate Commerce Com-portation company subject to the provisions of this mission.

Since that time, beginning in 1913, with Adams Express Co. v. Croninger, 226 U. S. 491, the Supreme Court of the United States has decided in a number of cases, all of which followed Hart v. P. R. R., 112 U. S. 331, that where the shipper has his choice of two rates, the higher carrying unlimited carrier's liability, and in "a fair, just, and reasonable agreement" declares or agrees that the value of his shipment is a certain sum, and thereby secures a reduced transportation rate, he is bound by that dec-acter of the goods, the carrier may require the shiplaration or agreement, estopped from claiming or recovering more than that value in case of loss of or damage to the property, and conclusively presumed to have known the governing tariff.

unlawful for any such common carrier to provide it will be understood that he desires the property by rule, contract, regulation, or otherwise a short-carried subject to the terms and conditions of the er period for giving notice of claims than ninety uniform bill of lading in order to secure the lower days and for the filing of claims for a shorter peri- rate or, as it is termed in the classification, "the od than four months, and for the institution of suits reduced rate." If the shipper notifies the agent of than two years: Provided, however, that if the the initial carrier that he elects not to accept all loss, damage, or injury complained of was due to the terms and conditions of the uniform bill of laddelay or damage while being loaded or unloaded, ing, the agent must print, write, or stamp upon the or damaged in transit by carelessness or negligence, bill of lading a provision that in consideration of then no notice of claim nor filing of claim shall be the higher rate charged the property will be carrequired as a condition precedent to recovery.' ried at the carrier's liability, limited only as pro"Sec. 2. That this act shall take effect and be in vided by law, but subject to the terms and condiforce from ninety days after its passage." tions of the uniform bill of lading in so far as they Many widely varying or diametrically opposed are not inconsistent with such common carrier's liaideas have been expressed as to the effect of this bility. amendment and as to what will be the lawful rates under present tariffs when it becomes effective on June 2, 1915. The commission has been urged to some expression in the premises. It has held a hearing on this subject, and the questions there discussed have been argued on briefs. From the best information it has been possible to obtain and the consideration it has been possible to give this matter within the limited time available, the commission expresses tentatively the views hereinafter in

dicated.

The Western classification, which, speaking generally, applies in all of the territory west of the Mississippi river and Lake Michigan, contains a rule that, except as otherwise provided therein, when property is transported subject to the provisions of the Western classification the acceptance and use of the uniform bill of lading is required. It also contains additional provisions substantially like those cited from the official classification. All of the terms of the uniform bill of lading are printed in the classification, but the live stock contract form does not so appear. The live stock ratings

are stated to be based upon values declared by shippers, not exceeding certain stated values "under

contract."

The Southern classification, which, speaking in general, applies in the territory east of the Mississippi and south of the Ohio and Potomac rivers, contains a rule that the reduced rates specified in the classification will apply only on property shipped subject to the conditions of the carrier's bill

The greater part of the freight transported moves under a bill of lading, which constitutes a receipt for the property and a contract for its carriage. Efforts have been made from time to time to secure the adoption and use by all carriers of a uniform bill of lading, but no such effort has been entirely successful. Several years ago protracted effort of that kind, assisted in so far as seemed appropriate by the commission, culminated in substantial agreement among the representatives of the shippers and the representatives of the carriers, except-of lading, and that property carried not subject to ing those in the Southern classification territory, as to the terms and conditions of what was then styled and has since been known as the uniform bill of lading. The commission gave its tentative approval and recommended its use, and since that time it has been in use except in the Southern territory mentioned, where a somewhat different bill of lading, commonly called the standard bill of lading, has been and is in use.

The official classification, which, speaking generally, applies in the territory east of the Mississippi river and north of the Ohio and Potomac rivers, contains a rule that, except as otherwise provided, when property is transported subject to the provisions of that classification the acceptance and use of the uniform bill of lading, export bill of lading, uniform live stock contract, and certain contracts with men in charge of shipments, respectively, are required. The uniform bill of lading and the other bills of lading or contracts are set out in full in the classification.

Another rule is that in order that the consignor may have the option of shipping subject to the terms and conditions of the uniform bill of lading, or under the liability imposed upon common carriers by the common law and the federal and state statutes applicable thereto, different rates and different forms of bills of lading are provided, to be used at the election of the shipper. Under this rule, unless it is otherwise provided in the classification, property will be carried at the lower rates specified if shipped subject to all the terms and conditions of the uniform bill of lading. Property carried not subject to all the terms and conditions of the uniform bill of lading is to be carried at the carrier's liability, limited only as provided by common law and by the laws of the United States and of the several states in so far as they apply, but subject to the terms and conditions of the uniform bill of lading in so far as they are not inconsistent with such common carrier's liability, and in such instances a rate 10 per cent. higher, subject to a minimum increase of 1 cent per 100 pounds, will be charged. It is provided that if consignor elects not to accept all the terms and conditions of the uniform bill of lading he shall so notify the agent of the carrier at the time his property is delivered for shipment, and if he does not give such notice

the conditions of the carrier's bill of lading will be at the carrier's liability, limited only as provided by common law and by the laws of the United States and of the several states in so far as they apply. It provides that property thus carried will be charged 10 per cent. higher, subject to a minimum increase of 1 cent per 100 pounds, than if shipped subject to the conditions of the carrier's bill of lading.

The classification does not contain the terms of the carrier's bill of lading, and, with one or two individual exceptions, the terms thereof are not filed with the commission as a tariff publication or rate schedule. The classification provides that the rates on live stock will apply when the declared value does not exceed certain values therein stated and that for each increase of 100 per cent. or fraction thereof in the declared value there shall be an increase of 20 per cent. in the rate. The classification does not contain any requirement that the live stock contract must be used, but it does provide that agents must not issue more than one live stock contract on any one shipment. Some of the tariffs of the individual carriers in this territory contain released rates applicable to shipments of live stock which are conditioned upon certain declared valuations and upon shipments being made under the live stock contract, and such tariffs provide that higher rates will apply when shipments are not so made. The terms of the live stock contract are not incorporated in the tariffs and, with one or two individual exceptions, they are not filed with the commission as a tariff publication.

It is perfectly plain that the purpose of this law is, except as otherwise provided therein, to invalidate all limitations of carrier's liability for loss, damage, or injury to property transported caused by the initial carrier or by another carrier to which it may be delivered or which may participate in transporting it. The law does not specifically say that attempts so to limit the carrier's' liability shall not be resorted to, but it declares them to be invalid and unlawful wherever found and in whatever guise they may appear. Obviously, therefore, neither the bills of lading or other contracts for carriage, or classifications or rate schedules of the carriers, should contain any provisions which are so declared to be unlawful and void.

Some of the carriers insist that if no changes are

(40 Sup.Ct.)

made in their classifications and other tariff publications the lower rates, which are conditioned upon the use of the bills of lading now in use, will be automatically canceled and the higher rates, based upon the carrier's liability, will be the only lawful rates from and after the date upon which the law in question becomes effective. Some of the shippers insist that if no changes are made in the classifications or tariff publications, the provisions for limitation of carrier's liability will, when the new law becomes effective, be unlawful and void, and the carriers will thereupon have two sets of rates, both applicable under like conditions, and that of the two shippers will be entitled to the lower.

The official classification roads have announced the purpose of making certain changes in the terms of their bill of lading, other contracts of carriage, and classification and rate schedules, in the light of the provisions of the new law. They say that whether or not they will continue to maintain rates based upon the value of the property is a matter for further consideration by their traffic officers. They express the opinion that certain of these changes will impose upon them liabilities not heretofore borne and consequent loss of revenue, and reserve the right to assert at the proper time a claim for some increase in rates on account thereof.

The Southern lines announced their purpose of making certain changes in their contracts, classification, and rate schedules which would exempt certain heavy commodities moving in large quantities and said to constitute about 70 per cent. of their traffic from any immediate increases in rates on account of the amended law, and to incorporate in the classification a provision that as to the remainder of the traffic the rates contained in schedules governed by the classification would be increased 5 per cent, upon the date when the new law becomes effective. That method of changing rates would be in direct opposition to the commission's regulations governing the construction of tariffs, which are by the act given full force of law. The Southern lines urge that the new law will produce conditions which furnish substantial reasons for allowing them additional revenue, and that it is physfcally impossible, except by the method which they propose, to issue any tariff publications prior to June 2 which will secure that additional revenue. They say that the tariff regulations are prescribed by the commission, and that it is within its power to modify them at any time, and therefore the question of whether or not the carriers should be permitted to make effective the proposed plan is wholly within the commission's discretion to determine. They argue that if nothing is done the 10 per cent. higher rates will automatically become effective, which they do not desire, and that the course proposed by them is the only alternative to the injustice of their being compelled to sustain the burdens imposed by the new legislation without means for recouping the losses which they will suffer.

The commission has made no investigation upon which a judgment as to the cost of and proper compensation for additional risk could be based. The commission has no right to assume that it would be 5 per cent. of the rates upon 30 per cent. of the carriers' traffic, or that it would be any given per cent. upon all of the traffic. Obviously there can be no propriety in attaching to one commodity unreasonable rates for the purpose of compensating a carrier for a risk attaching to it in the transportation of another commodity, and it is admitted that the carriers cannot make any accurate statement in advance as to the added cost, if any, of the increased liability.

With regard to rates on shipments of live stock, the Southern carriers announced at the hearing their purpose to provide that the present rates would apply on shipments declared to be of value not exceeding that now stated as limitation of the carrier's liability, and to increase the rates 20 per cent. for each 100 per cent. increase in the declared value of the live stock, By letter submitted since the hearing they announce the purpose to provide for an increase of 5 per cent. in the rate for each increase

of 100 per cent., or fraction thereof, in the declared value.

By a still later letter the Southern classification roads advise that, in view of the numerous and irreconcilable complications which have developed, and in order to remove all doubt as to the continuance of existing rates after the amendment to the law becomes effective, they have decided to supersede their present classification rule by one which will recite that the rates governed by the classification will apply only on property shipped subject to the conditions of the carrier's bill of lading in use on and after the effective date of the amended law, and, except as otherwise provided in the classification, all interstate rates in effect on June 2, 1915, will continue in force, disregarding provisions in tariffs, classifications, and exception sheets which limit the liability of carriers, and to continue a provision that property carried not subject to the terms and conditions of the carriers' bill of lading will be at carriers' liability, limited only by the common law and the laws of the United States and of the several states, in so far as they may apply, and property so carried will be subject to rates 10 per cent. higher than those shown in the tariffs.

The Western classification roads, in the main, take a position substantially like that taken by the official classification roads. Their representatives expressed to the committees of Congress the view that the enactment of the amendment in question would, by striking from the uniform bill of lading vital provisions, automatically throw the roads back upon their common-law liability and the increased rates. They admit that a 10 per cent. increase in rates cannot be justified. They think that the increased liability will justify some increase in rates, but emphatically disclaim any disposition to take advantage of a technical opportunity to mulct the shipping public. They are of opinion that they still have the right to provide rates upon live stock dependent upon the declared value of the stock, and that a shipper who misstates the true value of his shipment is guilty of violation of section 10 of the act, just as he would be if he misstated the commodity shipped. They suggest that their present rule, which provides in general for an increase of 10 per cent. in the rate for each 100 per cent. of increase in the declared valuation, is probably too high; that an increase of 5 per cent. in the rate for each 100 per cent. increase in the value, or of 3 per cent. in the rate for each increase of 50 per cent. in the value, would be a more equitable rule, and that this question is involved in a case soon to be submitted to the commission. They, like the Eastern roads, have numerous commodity rates based upon valuation, and they think they may lawfully continue that practice. They have, however, not had opportunity since this bill was enacted to formulate in detail the changes which they think necessary and proper.

From the best information that can be gathered from testimony that has been submitted in various cases, it appears that prior to 1913 the limited liability provisions contained in the shipping contracts, classifications, and rate schedules were very generally disregarded in the settlement of loss and damage claims, especially in the Western classification territory. It seems, therefore, that to a very large extent at least, despite the limitations of liability stated in the contracts and schedules, full value was quite generally recognized in the settlement of claims. After the Supreme Court decided the Croninger Case, supra, in 1913, the provisions of the contracts and rate schedules in this and other particulars were recognized as lawfully binding upon carriers and shippers alike, and the policy followed was correspondingly changed. It is pointed out that prior to 1906 many of these limitations of liability were not contained in the shipping contracts and rate schedules; that in 1906 they were incorporated therein, but were largely ignored until 1913; that in 1913 the policy was generally adopted of endeavoring to enforce the limited liability provisions; and that neither in 1906 nor in 1913 was any change in the rates undertaken because of the limited lia

bility. It is argued that, inasmuch as no reduction | certain bills of lading are accepted higher rates in rates was made when the limited liability pro- will apply. The terms of the bill of lading could visions were established, or when they were sus- be modified or changed to any extent without autotained as lawful by the Supreme Court of the Unit-matically changing any rate. Prior to 1913 many ed States, there is no justification for an increase of the limitations contained in bills of lading or in rates now that the liability conditions are re- other shipping contracts were treated as if they stored to substantially what they were prior to did not exist, and it was never suggested that the 1906. Limitations of liability have been incorporated validity or invalidity of any such provision affectin live stock shipment contracts for many years, ed the rate, but, as has been said, it appears that at least in the territory where there is the greatest movement of live stock those limitations were generally disre-tended by Congress unless the express language garded in settlement of claims.

The more important points, which seem to be surrounded with the most doubt and upon which opinions so far expressed most sharply conflict, are: 1. If no changes are made in the existing shipping contracts and rate schedules, will the higher rates provided therein automatically become lawfully applicable upon the date upon which the amend-portation from certain points to certain other