
    CHICAGO, M. & ST. P. RY. CO. v. McCAULL-DINSMORE CO. 
    
    (Circuit Court of Appeals, Eighth Circuit.
    September 22, 1919.)
    No. 5314.
    ÜABEIEE8 <&wkey;180(l) — ^IMITATION OF UABILITY; INABILITY FOE POSS OF INTERSTATE GARETEES.
    Under Interstate Commerce Act, § 20, as amended by Cummins Aet, § .1 (Comp. St. § 8604a), providing that an interstate carrier of property shall issue a bill oí lading therefor and be liable for any loss or damage to the property caused by it or any other carrier when carried under a through bill of lading, and that no contract limiting such liability shall be valid, a provision of such bill of lading fixing the carrier’s liability at the value of the property at the place and time of shipment is a limitation, and is invalid, and not enforceable.
    In Error to the District Court of the United States for the District of Minnesota; Page Morris, Judge.
    Action at law by the McCaull-Dinsmore Company against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff (252 Fed. 664), and defendant brings error.
    Affirmed.
    F. W. Root, of Minneapolis, Minn. (Nelson J. Wilcox, of Chicago, Ill., on the brief), for plaintiff in error.
    J. O. P. Wheelwright, of Minneapolis, Minn., for defendant in error.
    Before HOOK and STONE, Circuit Judges, and AM1DON, District Judge.
    
      
      Certiorari granted 251 U. S. 549, 40 Sup. Ct. 219, 64 L. Ed. 409.
    
   STONE, Circuit Judge.

Action for loss of interstate shipment of grain. The facts were stipulated. The shipment was made under a bill of lading or shipping contract wherein it was provided that:

“The amount of any loss or damage for which any carrier is liable shall he computed ou 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 contract was in a form like that included in the legally published tariffs filed with the Interstate Commerce Commission, which tariffs provided, among other things, a rate of transportation based on and controlled by said form of bill of lading, and that, in cases where the shipper was not agreeable to shipping under the terms of such form, then a higher rate was to be charged. The fair market value of the shipment at destination at the time when it should have been delivered, with interest, and less freight charges, was $1,422.11. The railway has paid thereon $1,200.48, the value at origin at time of shipment. From a judgment for the difference the railway has taken its writ of error.

The controversy is over the difference, and the sole question here presented is whether the origin value or the destination value should govern where the shipment was under such a form of interstate bill of lading. At the time of this shipment the so-called Cummins Amendment of March 4, 1915 (38 Stat 1196, c. 176 [Comp. St. § 8604a]), contained the law in this respect governing form of contracts for in-' terstate shipment. That statute provided:

“Tbat any common carrier, railroad, or transportation company subject to tbe provisions of this act receiving property for transportation from a point in one state or territory or tbe District of Columbia to a point in another state, territory, District of Columbia, or from any point in tbe United States to a point in an adjacent foreign country 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 within the United States or within an adjacent foreign country when transported on a through bill of lading, and no contract, receipt, rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; and any such common carrier, railroad, or transportation company so receiving property for transportation from a point in one state, territory, or the District of Columbia! to a point in another state or territory, or from a point in a state or terri-' tory to a point in the District of Columbia, or from any point in the United States to a point in an adjacent foreign country, or for transportation wholly within .a territory shall be liable to the lawful holder of said receipt or bill of lading or to any party entitled to recover thereon, whether such receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property caused by it or by any such common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States or within an adjacent foreign country when transported on a through bill of lading, 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: Provided, however, that if the goods are hidden from view by wrapping, boxing, or other means, and the carrier is not notified as to the character of the goods, the carrier may require the shipper to specifically state in writing the value of the goods, and the carrier shall not be liable beyond the amount so specifically stated, in which case the Interstate Commerce Commission .may establish and maintain rates for transportation, dependent upon the value of the property shipped as specifically stated in writing by the shipper. Such rates shall be published as are other rate schedules: Provided further, 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 the existing law.”

The railway seeks to avoid the application of this provision by contending that it, in the present instance, has not sought to limit its liability, but has, on the contrary,, defined liability for the full, actual loss, and has by its tariffs thus crystallized the method of arriving at the actual loss. We deem such contention unsound. There was no uncertainty as to the time or place of estimating value under the rule of common law — it was the destination. The evident purpose of the provision in the bill of lading was not to introduce certainty, but to avoid the rule existing at law, for the.obvious object of escaping a higher valuation which would often arise at destination. Such a provision is unquestionably a limitation, since it forbids application of the established rule.

The railway also says:

“Tbe rule, as we contend, was tbat, in the absence of contract, destination value would apply, but tbat it was not unlawful to agree upon origin value.”

Whether the parties could so agree at the common law is not material. The Cummins Amendment was not concerned alone with preventing contracts already illegal under the common law, but with prohibiting all agreements having the effect defined by that statute. Congress passed this act to remedy the defects in the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [Comp. St. §§ 8604a, 8604aa]), as developed in the case of Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257, and intended thereby to fully and finally prevent all limitations of this character. Congressional Record, 63d Congress, 3d Session, Vol. 52, pp. 5446-5451.

The judgment is affirmed.  