
    Fern v. Adams Express Company, Appellant.
    
      Carriers — Common carriers — Express company — Limitation upon liability — Interstate commerce.
    
    1. In an action by a shipper against an initial carrier for the loss of goods by a connecting carrier, where the latter received the goods beyond the limits of Pennsylvania, and the bill of lading contains a provision to the effect that the shipper agrees that the value of the property is not more than $50.00, unless a greater value is stated, and also provides that the goods may be delivered to a connecting shipper, the shipper may maintain the action against the initial carrier under the interstate commerce act and its supplements, but is limited in his recovery to $50.00, if he has not stated a greater value. In such a case as the loss is not caused by the negligence of the initial carrier, the limitation of liability, is valid under the law of Pennsylvania.
    2. No policy of the state of Pennsylvania prohibits a contract of a common carrier limiting liability where the loss or injury does not result from negligence. The interstate commerce act does not impose' upon this state a different rule. It charges the initial carrier with a responsibility beyond that to which such carrier was previously held' by the law of Pennsylvania, but it does not contain a prohibition against an agreement between a shipper and carrier by the terms of which the value of the property is agreed on in advance as a measure of damages.
    Submitted. Oct. 20, 1911.
    Appeal, No. 196, Oct. T., 1911, by defendant, from judgment of C. P. No. 2, Pbila. Co., June T., 1910, No. 362, on verdict for plaintiff in case of Thomas Fern v. Adams Express Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Judgment modified.
    Case stated to determine the liability of an express company, for the loss of goods. Before Sulzberger, P. J.
    The bill of lading under which the goods were shipped was as follows:
    The Company’s charge is based upon the value of the property, which must be declared by the shipper.
    isoA ADAMS EXPRESS COMPANY
    (NON-NEGOTIABLE BILL OF LADING)
    PHILADELPHIA, PA. r/isiisos i9q
    Received from.....!®s0.__
    
      0ne pfcg-_
    Valued at $._
    Markfirf Morton Castor __
    
      _Ocean Park, Calf_
    Which the Company agrees to carry upon the following terms and conditions, to which the shipper agrees, and as evidence thereof, accepts this bill of lading,
    1. In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding fifty dollars unless a greater value is declared, the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein.
    2. If the Express Company has not an agency at the point of destination, it shall carry the property to its agency nearest or most convenient thereto, and there notify the consignee, or deliver the property to some other carrier to continue the transportation. The Adams Express Company shall not be liable for loss or damage occurring after such delivery, nor for detention after having tendered the property to a connecting carrier.
    3. The Express Company shall not be required to make free delivery at points where it maintains no free delivery service, nor at any point beyond its established delivery limits.
    4. The Express Company, unless negligent, shall not be liable for loss, damage or detention of said property caused by civil or military authority, piracy, insurrection, strikes or riot, or by the act of any person acting as an officer of the law, whether with or without lawful process, warrant or authority, or by the dangers of railroad transportation, the perils of navigation, changes of temperature, heat, cold, wet or decay, nor for the death, injury or escape of live freight, the Company not being a carrier thereof except at owner’s risk.
    5. Said property is accepted as merchandise only, and the Express Company shall not be liable in any event for the loss of money, specie, bonds, coupons, or other negotiable paper, which the Company does not receive or carry except through its money department provided for that purpose.
    6. The Express Company shall not be liable for loss, damage or detention of said property unless a claim therefor shall be presented to it in writing at this office^within ninety days from this date with this contract or a copy thereof annexed; nor shall the Company be liable in any suit to recover for the loss, damage or detention of said property unless the same shall be commenced within one year after such loss, damage or detention shall have occurred, and not afterwards.
    7. Articles of GLASS, articles contained in glass and fragile articles are accepted at OWNER’S RISK.
    8. If any C. O. D., is not paid within thirty days the shipper agrees that the Express Company may return the property, and that he will pay the charges for transportation both ways.
    9. The terms and conditions of this contract shall apply to any forwarding or return of said property, and shall inure to the benefit of every earner to whom the same may be entrusted to complete the transportation.
    
      CHARGES_pd- A90
    For the Company, — —ver-s-
    Uability limited to $50 unless a greater value is declared.
    
      The goods were delivered by the defendant in good condition to Wells, Fargo and Co., a common carrier at Denver, Colorado. The defendant had no agent or express service from Denver to Ocean Park. The goods were never delivered by Wells, Fargo and Co. to the consignee nor accounted for.
    ' The court entered judgment for plaintiff on the case stated for $102.70. Defendant appealed.
    
      Error assigned was in entering judgment for plaintiff on case stated.
    
      John Lewis Evans and Thomas DeWitt Cuyler, for appellant.^
    — In a suit by a shipper against an initial carrier for loss of goods by a connecting carrier, no cause of action exists under the law of Pennsylvania and the shipper must rely solely on the Carmack amendment to the interstate commerce act which requires the initial carrier to issue a bill of lading and makes it liable for loss caused by the connecting carrier; therefore the measure of liability and the validity of a provision of the bill of lading as affecting it, must be determined by the common-law decisions of the supreme court of the United States: Chicago, Milwaukee & St. Paul Ry. v. Solan, 169 U. S. 133 (18 Sup. Ct. Rep. 289).
    When the schedules filed by a carrier with the interstate commerce commission provide for a graded valuation charge to be added to the merchandise rates when the value of the goods is over $50.00, and contain a regulation as follows: “Merchandise rates are based on a valuation of not exceeding $50.00 per shipment, and no further liability is assumed by the Express Company unless the shipper declares at the time of shipment a higher value,” this clause is a regulation affecting the rate and as such is effective until set aside by the interstate commerce commission, and is not subject to attack in any collateral proceeding: Interstate Commerce Commission v. Illinois Cent. R. R. Co., 215 U. S. 452 (30 Sup. Ct. Repr. 155); Baltimore & Ohio R. R. Co. v. U. S., 215 U. S. 481 (30 Sup. Ct. Repr. 164); Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (27 Sup. Ct. Repr. 350); Caldwell v. U. S. Express Co., 36 Pa. Superior Ct. 465.
    As a carrier may, under the law of Pennsylvania, limit its liability for loss not occasioned by its negligence, the $50.00 clause is valid in this case, the defendant being free from any charge of negligence: Farnham v. Camden, etc., R. R. Co., 55 Pa. 53; Crary v. R. R. Co., 203 Pa. 525.
    
      Edwin M. Finletter, for appellee.
    — Inasmuch as the relation of principal and agent existed between the defendant and the connecting carrier, the negligence of the one is the negligence of the other and that therefore under the law of Pennsylvania the $50.00 clause would be invalid.
    July 18, 1912:
   Opinion by

Henderson, J.,

The plaintiff wishing to send a package of merchandise to a customer in California delivered it to the defendant and received from the latter a bill of lading and shipping receipt, a part of which is in the form following:

“Philadelphia, Pa.
7-13-1909 190 . Received from 1230
One pkg. . Valued at $
Marked Morton Castor
Ocean Park, Calif.
“Which the Company agrees to carry upon the following terms and conditions, to which the shipper agrees, and as evidence thereof, accepts this bill of lading.”

One of the provisions of the bill of lading is that the shipper agrees that the value of the property is not more than $50.00 unless a greater value is stated and that the company shall not be liable in any event for more than the value so stated nor for more than $50.00 if no value is stated. It is further stipulated therein that, “If the Express Company has not an agency at the point of destination, it shall carry the property to its agency nearest or most convenient thereto and there notify the consignee, or deliver the property to some other carrier to continue the transportation. The Adams Express Company shall not be liable for loss or damage occurring after such delivery, nor for detention after having tendered the property to a connecting carrier.” No valuation was asked for or given at the time of the delivery of the package. The defendant did not have an agent or express service at Ocean Park, its agency nearest thereto being at Denver, Col., to which place the merchandise was transported and there delivered in good condition to Wells, Fargo & Company, a common carrier having express service between Denver and Ocean Park, for transportation to the latter place. The merchandise was never delivered to the consignee nor accounted for, and this action was brought to recover its value. There was no oral modification of the shipping agreement and the rights of the parties are, therefore, to be determined by that instrument. If any implication arises, from the fact that the ultimate destination was Ocean Park and the charges thereto paid, that the undertaking was for carriage to the place of consignment this is met by the terms of the contract which provided that the defendant’s obligation was to carry the property to its agency nearest or most convenient to the destination and there deliver it to some other carrier to continue the transportation and that it should not be liable for loss or damage occurring after such delivery. Taking all the terms of the bill of lading into view the obligation of the defendant at the end of its line was that of a forwarder. Its terms are plain and unambiguous and express the undertaking of the defendant to be that of a carrier to Denver only. That was one of the conditions, as stated in the contract, under which it undertook to carry the goods and the plaintiff in accepting the bill of lading agreed to its terms as the bill of lading distinctly provides: Crary v. R. R. Co., 203 Pa. 525. The extent of the obligation of the initial carrier for shipment over the route of a connecting carrier was considered in Camden and Amboy R. R. Co. v. Forsythe, 61 Pa. 81, and in Keller v. B. & O. R. R. Co., 196 Pa. 57, in both of which cases the authorities are reviewed and the conclusion reached that the liability of the first carrier only continued to the end of its line in the absence of an express agreement for through carriage, or where companies were operating a continuous route and there was nothing to show another intention than to carry to ' the destination. Under these authorities we regard it as settled that the defendant’s liability as a common carrier ceased when it delivered the plaintiff’s merchandise to Wells, Fargo & Company. The contract of carriage expressly authorized the defendant to deliver the goods to a connecting carrier and this carrier cannot be held to be the agent of the defendant under the agreement set out in the case stated. The first carrier undertook to deliver to a connecting carrier and as to such delivery it became a forwarder only. At common law and under the decisions of this state that would relieve the defendant from liability, but the Interstate Commerce Legislation, 34 Statutes at Large, 584, provides that any common carrier, railroad company 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 hable to the lawful holder thereof for any loss, damage or injury to such property caused by it or any common carrier, railroad company or transportation company to which such property may be delivered or over whose line or lines such property may pass. Under this legislation the defendant became hable to the plaintiff on the failure of Wells, Fargo & Company to deliver or satisfactorily account for the loss of the merchandise, and the important question is, For how much is it liable? The contract provides that the liability shall not exceed $50.00 where no value is stated in the bill of lading. The actual value of the package was $100. The plaintiff asks judgment for this amount with the express charge added. The defendant contends that its liability at the most is only for $50.00 and the charges. It has been frequently decided that a common carrier may by special contract limit his liability for loss or injury to goods carried by it as to every cause of injury except that arising from negligence. In the latter class of cases the decisions are uniform that there cannot be exemption from, or limitation of, liability by contract. In the other class the common-law rule of liability as an insurer may be set aside by agreement in which case the agreement becomes the law' between the parties. Laing v. Colder, 8 Pa. 479; Farnham v. Camden & Amboy R. R. Co., 55 Pa. 53; American Express Co. v. Sands, 55 Pa. 140; Adams Express Co. v. Sharpless, 77 Pa. 516; Grogan & Merz v. Adams Express Co., 114 Pa. 523; Crary v. R. R. Co., 203 Pa. 525, are some of the cases in which this principle is discussed or decided. As the plaintiff’s loss did not occur on the defendant’s line nor when the property was in its custody, this rule as to limitation of liability applies. There was no negligence on the defendant’s part, the property was in good condition when it was delivered to Wells, Fargo & Company and there is no place therefore for the application of the Pennsylvania rule that a common carrier cannot contract for exemption from or limitation of liability. On grounds of public policy such exemption or limitation is prohibited, but this applies to cases of negligence only. No policy of the state prohibits a contract limiting liability where the loss or injury does not result from negligence. The appellee contends that under the operation of the Interstate Commerce Law the defendant is accountable for the full value of the property, but the statute fixing the liability of the initial carrier does not by its terms touch the question of the limitation of liability by contract and we do not understand that it imposes on this state a public policy not theretofore existing. It charges the initial carrier with a responsibility beyond that to which such carrier was held by the law of this state, but it does not contain a prohibition against an agreement between a shipper and carrier by the terms of which the value of the property is agreed on in advance as a measure of damages in case of loss. The branch of the case relating to the obligations of the first and second carriers was not brought to the attention of the learned judge of the court below or was inadvertently overlooked by him and is therefore not considered in his opinion. The facts presented in the case stated and the application of the law thereto as expressed in the authorities cited bring us to the conclusion that the measure of damages to which the plaintiff is entitled is limited by the contract of shipment to $50.00, to which is to be added the express charges paid by the plaintiff.

The judgment is therefore modified and is now entered for $52.90 with interest from July 13, 1909, and costs.  