Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1875-07-21
UNION AND AMERICAN.
THE LAW OF EXPRESS COMPANY
RISKS.

hASAS.
A decision of great Importance t.
consigners and shippers was rendered
IN the United States Supreme Court
last Friday, establishing the right Of
common carriers TO Limit their liability
by inserting a clause in the bill of la
ding requiring a notice Of loss from tn,
consignOr within given number o.
days after shipment. The case il
question came up on an appeal taken
by the Southern Express Company
plaintiffs in error, from the decision Of
the Circuit Court for the Western Dis.
tEict Of Tennessee IN favor of Robert
D. Caldwell, defendant IN error Under
the decision any consignor, shipper OF
bailor viii be barred from prosecuting
his claims to goods intrusted to a CON-
mon carrier unless he gives formal
notice to the company in accordance TO
Its contract with him.
The defendants IN the court below.
having been sued as common carriers
for their failure to deliver at New Or
leans a package received by them on
the 23d of April, 1862, at Jackson. in
this State, pleaded that when the pack
age was received sit was acre, j be-
tween them and theplaintiff, and made
one Of the express conditions upon
which the package was received, that
they should not be held liable for any
loss Of or damage to the package what
ever, unless claim should be made
therefor within ninety days from its
delivery to them" The plea further
ayerred that no claim was made
upon the defendant or upon any
of their agents until 1868, more
than ninety days after the delivery of
the package to them, and not until
the present suit was brought. To the
plea thus made the plaintiff demurred
generally, and the court sustained the
demurrer, giving judgment against the
defendant.
In delivering the opinion of the
Court, EIr. Justice Strong said:
Whether the Judgment was correct
is ne only question presented by the
record which we can cons. der. It is
undoubtedly true that special contracts
with the employers Of common carriers
limiting their liability are recognized
as valid if IN the Judgment Of the
Court they are just and reasonable-if
they are not IN conflict with sound legal
policy. The contract Of a common car
IIer ordinarily is an assumption by him
of the exact duty which the law affixes
10 tn relation into which he enters
when be undertakes toIcarry; that rela-
ton the law regards as substantially
one Of insurance against loss or dam
age, except such as result from what Is
denomiDated the act Of God or Of the
public enemy. But the severe opera
ton Of such a rule IN some cases has
led 10 a relaxation Of its stringency
when the cOnsignOr and carrier agree
to such a relaxation. All the modern
authorities concur II holding that, to a
certain extent. the extreme liability eX-
acted 10y the common law originally
may be limited by express contract.
The difficulty is in determining to what
extent, and here the authorities differ.
Certainly it ought not to be admitted
that q common carrier can be relieved
from the full measure Of that response
bllIty which ordinarily attends his oc-
cupatIOn without a clear and express
stipulation to that effect obtained by
him from his employer.
But that which was public policy a
hundred years ago has undergone
changes N theprogress Of material and
social civilization. There is less danger
than there was of collision With high
waymen. Intelligence is more rapidly
dItfused. 1t Is more easy to trace a
consignment than it was. 1t Is more
difficult to conceal a fraud. And what
Is Of equal Importance, the business of
common carriers has been immensely
increased and sub-divided. This sub.
iect has been so fully considered Of late
in this court that 1t is needless TO re-
view the authorities at large. In York
Company VS.. The Central Railroad
Company, 3 Wallace, lO7, it Is ruled
that the common law liability of
common carrier may be limited and
qualified by special contract with the
OWNER. provided such such special con-
tract does not attempt TO cover losses
by negligence or misconduct And in
still later case. Railroad Company VS..
Lockwood. L Wall, So, where the de-
clsIons are extensively reviewed, the
same doctrine Is asserted. The latter
case. Il Is true, involved mainly an in
quIry into the rCasOnableuess IF an cx-
ceptI0n stipulated for, but 1t uugluiv-
OCally accepted the rule asserted in
the aforementioned case.
The question then which Is presented
to us by this record Is whether the
stipulation asserted IN The defendant
plea is "a reasonall. one, not incons'st-
Cnt with sound public policy. 1t may
be remarked, IN the first place. that
the stipulation rs not "a conventional
limitation Of the ght of the carrier s
employer to sue. lie is left at liberty
to sue at any time within the period
fixed by the statute Of limitation. He
i only required to make his ct ina
within ninety days. IN season n enable
the carrier TO ascertain what the facts
are. .t.l having made his ciiIm. he
may lay his suit. 1t may also be Pc.
mar. a that the contract Is not "a stip-
ulat.y Il for exemption from responsi-
bility for the defendants negligence
or for that Of their servants. 1t is