An agreement between the states involved to allow expropriation on due compensation made and to submit the whole matter to arbitration, if Congress gave its consent, might be a possible solution of the New York and New Jersey, Kansas and Colorado, Illinois and Missouri problems above indicated, but in so far as the rights of individuals in real property would necessarily be involved it is somewhat uncertain how far this procedure could be made constitutional and practicable, and in so far as in any case it amounts to a surrender of territorial or jurisdictional rights fixed by constitutional provisions, it seems probably beyond the competence of merely statutory action.

The subject has many intricacies and difficulties, the solution of which is not here attempted; but it is submitted that it is among the extensions of arbitration to be considered and wisely shaped by publicists and statesmen.

Even if the nation surrenders in part its right just as the individual loses his property right, it is upon due compensation made. It is part of "the growth of equitable judicial ideas," already alluded to, and, as Mr. T. A. Walker has pointed out,1 as a result of the needs of international intercourse the strict principles "of territorial sovereignty and its corollaries must be at times affected and relaxed. The progressive improvement of human nature necessarily involves the progressive development of international law." To aid such development should be the very high function of all students of that noble and by no means stagnant part of jurisprudence. Lawyers must not deserve the taunt of Voltaire, who called them the conservers of old abuses, but their ingenuity and prudence must wisely shape a safe and lasting progress. They must help towards the attainment of that "Peace of Justice" which President Roosevelt has pictured as the goal set before all mankind.

Charles Noble Gregory.

UNIVERSITY OF IOWA.

1 Walker, Internat. Law, 10, § 1895.

AGREED VALUATION AS AFFECTING THE LIABILITY OF COMMON CARRIERS FOR NEGLIGENCE.

THE

HE rule that a common carrier may not relieve itself by contract from liability for loss or damage to goods due to its negligence is now generally accepted, yet even with courts professing to follow it there is an increasing disposition to limit recovery against the carrier to the amount agreed upon between the carrier and the shipper as the value of the shipment, though loss occurs through the carrier's negligence. We purpose to examine briefly the decisions sustaining such limitations and to consider their significance in relation to the general rule, assuming that this rule is accepted as settled law.

It is obvious that a court which rejects this general rule, and allows a common carrier to relieve itself by contract from liability for negligence, will in like manner sustain a partial exemption from such liability. The partial exemption may be in form the limitation of liability to a specific sum or the valuation of the goods at some definite figure.1 In either case the limit of recovery even for negligence is fixed. These decisions do not, however, explain how a court refusing to allow the limitation of liability for negligence can consistently in such case uphold an agreed valuation. They require no comment save that, in accordance with a well-established principle, any doubt as to whether a stipulation under consideration does or does not include loss by reason of negligence must be resolved in favor of the latter view and against the carrier.2

Where, however, carriers are not permitted to contract away their liability for negligence, the courts have decided with practical unanimity that a stipulation, without reference to attempted valuation, that liability in case of loss shall be limited to a sum specified

1 Manchester, etc., Ry. Co. v. Brown, 8 App. Cas. 703; Great Western Ry. Co. v. McCarthy, 12 App. Cas. 218; M'Cance v. London & Northwestern Ry. Co., 7 H. & N. 477 (Exchequer), 3 H. & C. 343 (Exchequer Chamber); Belger v. Dinsmore, 51 N. Y. 166; Magnin v. Dinsmore, 62 N. Y. 35, 70 N. Y. 410; Zimmer v. New York Central, etc., R. R. Co., 137 N. Y. 460.

2 Westcott v. Fargo, 63 Barb. (N. Y.) 349, 61 N. Y. 542; Vrooman v. American, etc., Express Co., 2 Hun (N. Y.) 512; Marquis v. Wood, 61 N. Y. Supp. 251.

is, in case of loss through negligence, invalid. There is manifest reason for this holding, since it is difficult to understand how a carrier, if it may not relieve itself from liability for negligence up to the total value of the goods carried, may nevertheless in effect stipulate for non-liability as to one-half or nine-tenths or ninetynine hundredths of their value.1

An agreement of this nature, not even purporting to be based upon the value of the goods carried, discloses an obvious effort of the carrier to escape liability beyond the fixed sum, and contains none of the extenuating elements which in cases of so-called agreed valuation have induced the courts to sustain such valuation as a limit of liability. In fact, Mr. Hutchinson explains the divergence of the decisions upon the question of the exempting of the carrier from liability beyond a fixed amount as depending on whether the contract in question limits liability to a certain sum or constitutes a bona fide valuation of the goods. This explanation cannot, however, be accepted as adequate, for while stipulations in form limiting liability to a certain amount are everywhere invalid, the decisions are not harmonious where the agreement in form fixes the value of the goods. These decisions are not free from difficulty and form the material for this discussion.

5

Eells v. St. Louis, etc., Ry. Co., 52 Fed. 903; Schwarzchild v. Nat'l S. S. Co., 74 Fed. 257; Mobile, etc., R. R. Co. v. Hopkins, 41 Ala. 486; Georgia Pacific Ry. Co. v. Hughart, 90 Ala. 36; Galt v. Adams Express Co., MacArthur & M. (D. C.) 124; Georgia R. R. & Banking Co. v. Keener, 93 Ga. 808; Central of Georgia Ry. Co. v. Murphey & Hunt, 113 Ga. 514; Central of Georgia Ry. Co. v. Hall, 124 Ga. 322; Chicago & Northwestern Ry. Co. v. Chapman, 133 Ill. 46; K. C., etc., R. R. Co. v. Simpson, 30 Kan. 645; Adams Express Co. v. Hoeing, 8 Ky. L. Rep. 154, 9 Ky. L. Rep. 814; Moulton v. St. Paul, etc., Ry. Co., 31 Minn. 85; Southern Express Co. v. Moon, 39 Miss. 822; Chicago, etc., R. R. Co. v. Abels, 60 Miss. 1017; Southern Express Co. v. Seide, 67 Miss. 609; Doan v. St. Louis, etc., Ry. Co., 38 Mo. App. 408; U. S. Express Co. v. Backman, 28 Oh. St. 144; Pittsburg, etc., Ry. Co. v. Sheppard, 56 Oh. St. 68; Ambach v. B. & O. R. R. Co., 4 Oh. Dec. 467; Coward v. East Tennessee, etc., R. R. Co., 16 Lea (Tenn.) 225; Ry. Co. v. Wynn, 88 Tenn. 320; Southern Pacific Ry. Co. v. Maddox, 75 Tex. 300; St. Louis, etc., Ry. Co. v. Robbins, 14 S. W. 1075 (Tex.); Galveston, etc., Ry. Co. v. Ball, 80 Tex. 602; Virginia, etc., R. R. Co. v. Sayers, 26 Grat. (Va.) 328; Maslin v. B. & O. R. R. Co., 14 W. Va. 180; Abrams v. Milwaukee, etc., R. Co., 87 Wis. 485.

As to the Massachusetts decisions see comment in note 10.

4 See, for example, Baughman v. Louisville, etc., R. R. Co., 94 Ky. 150; Ry. Co. v. Wynn, 88 Tenn. 320.

5 Hutchinson, Carriers, 2 ed., Mechem, § 249 et seq.

• Except, of course, in New York and perhaps in Massachusetts. See infra, note 10. Thus even in cases of agreed valuation the following jurisdictions deny the validity of such stipulations in cases of negligence: Overland Mail & Express Co. v. Carroll, 7 Colo 43; Adams Express Co. v. Stettaners, 61 Ill. 184; Southern Express

The leading decision in this group of cases is Hart v. Pennsylvania Railroad Co. Hart sued the Pennsylvania Railroad to recover damages for the breach of a contract to transport certain horses from Jersey City to St. Louis. Through the carrier's negligence one of the horses was killed and four were injured. Hart claimed to recover damages to the amount of $19,800, offering to prove that the horses were worth, the one killed, $15,000, and the others from $3000 to $3500 apiece, and that his loss was as stated. This evidence was excluded on the ground that the contract of shipment provided that the carrier assumed "liability on the stock to the extent of the following agreed valuation: If horses or mules, not exceeding two hundred dollars each." On appeal to the Supreme Court of the United States it was decided that notwithstanding the carrier's negligence Hart's recovery should be limited to the agreed valuation.

Prior to this decision there was much indefiniteness of principle in the reported cases, and a decided lack of agreement. It has subsequently, however, been followed in many jurisdictions,10 the

Co. v. Marks, etc., Co., 40 So. 65 (Miss.); Orndorff & Co. v. Adams Express Co., 3 Bush (Ky.) 194; Baughman v. Louisville, etc., R. R. Co., 94 Ky. 150; Cincinnati, etc., Ry. Co.'s Receiver v. Graves, 21 Ky. L. Rep. 684; Ill. Cent. Ry. Co. v. Radford, 23 Ky. L. Rep. 886; Hughes v. Pennsylvania R. R. Co., 202 Pa. St. 222. Elkins v. Empire Transportation Co., 81* Pa. St. 315, did not involve negligence. The statement to the contrary is evidently an error of the reporter: Weiller v. Penna. R. R. Co., 134 Pa. St. 310. The decision by Judge Hare in Newburger v. Howard, 6 Phila. (Pa.) 174, cited by the court in the Hart case, and in accord therewith, was rendered before the Supreme Court of Pennsylvania had decided otherwise. It is noteworthy that Chief Justice Mitchell has consistently dissented from the Pennsylvania decisions, and in the latest case, Hughes v. Railroad, he is joined by Mr. Justice Brown. Galveston, etc., Ry. Co. v. Ball, 80 Tex. 602; Houston, etc., Ry. Co. v. Williams, 31 S. W. 556 (Tex.).

In states where statutes or the state constitution forbid common carriers to vary their common law liability, stipulations as to agreed valuation have been held to be within the prohibition of the statute. Lucas v. Burlington, etc., Ry. Co., 112 Ia. 594; St. Louis, etc., Ry. Co. v. Sherlock, 59 Kan. 23; Ohio, etc., Ry. Co. v. Taber, 98 Ky. 503; Ill. Cent. R. Co. v. Radford, 23 Ky. L. Rep. 886; Pacific Express Co. v. Hertzberg, 42 S. W. 795 (Tex.); St. Louis, etc., Ry. Co. v. McIntyre, 82 S. W. 346 (Tex.). 8 112 U. S. 331. There is a very satisfactory collection of the cases citing this decision in 10 Rose, Notes to the U. S. Reports, 896.

In the report of the case in the lower court, 7 Fed. 630, it is said that the loss was due to the gross negligence of the carrier.

10 St. Louis, etc., Ry. Co. v. Weakly, 50 Ark. 397; Peirce v. Southern Pac. Co., 47 Pac. 874 (Cal.); Coupland v. Housatonic R. R. Co., 61 Conn. 531; Georgia Southern Ry. Co. v. Johnson, 121 Ga. 231; Louisville, etc., Ry. Co. v. Nicholai, 4 Ind. App. 119; Adams Express Co. v. Carnahan, 63 N. E. 245 (Ind.); Smith v. American Express Co., 108 Mich. 572, semble; Alair v. Northern Pac. R. R. Co., 53 Minn. 160; Harvey v. Terre Haute, etc., R. R. Co., 74 Mo. 538; Brown v. Wabash, etc., Ry. Co., 18 Mo. App.

courts in some instances practically repudiating, though professing to distinguish, their earlier decisions, and it now represents the prevailing view. Nevertheless in some states its soundness is questioned and a contrary rule established.12

It must not be forgotten that whatever may be the theory underlying this decision, its result is to relieve the carrier from obligation to pay to the shipper the full value of the goods, and that, too, though the loss has happened through the carrier's negligence. Since the general rule forbidding the limitation of liability for negligence is so well settled, it becomes of importance to inquire by what reasoning this conclusion is reached.

The Hart case, and other decisions in accord with it, suggest estoppel" as the foundation upon which they may be rested.13

568; Duntley v. Boston & Maine, 66 N. H. 263; Durgin v. American Express Co., 66 N. H. 277; Ballou v. Earle, 17 R. I. 441; Johnstone v. Railroad Co., 39 S. C. 55; Richmond, etc., R. Co. v. Payne, 86 Va. 481; Loeser v. Chicago, etc., R. Co., 94 Wis. 571; Ullman v. C. & N. W. R. Co., 112 Wis. 150; Robertson v. Grand Trunk Ry. Co. of Canada, 24 Can. Supreme Ct. 611.

Curiously enough the Massachusetts cases do not make the distinction prevailing generally in the other decisions between a limitation of liability to a specific sum and an agreement of valuation at that sum, but uphold the fixed limit of liability if reasonable, basing their conclusions apparently on the test as settled in England by statute, vis., whether in the mind of the court the contract limiting liability is reasonable. See Phillips v. Earle, 8 Pick. (Mass.) 182; Squire v. New York Cent. R. R. Co., 98 Mass. 239. In this case, e. g., the stipulation was to the effect that the carrier should "not for any cause be held liable beyond the sum of $200 for injury to, or loss of, any single animal carried pursuant to this agreement, although the actual value of such animal may exceed that amount." Graves v. Lake Shore, etc., R. R. Co., 137 Mass. 33; Hill v. Boston, etc., R. R. Co., 144 Mass. 284; Brown v. Cunard Steamship Co., 147 Mass. 58; Hood Co. v. American Pneumatic Service Co., 77 N. E. 638 (Mass.).

Among the earlier decisions, also, the distinction is frequently overlooked, but since the Hart case it has been recognized almost universally.

11 Thus with Great Southern R. R. Co. v. Little, 71 Ala. 611, compare L. & N. R. R. Co. v. Sherrod, 84 Ala. 178; with Kallman v. U. S. Express Co., 3 Kan. 198, and K. C., etc., R. R. Co. v. Simpson, 30 Kan. 645, compare Pacific Express Co. v. Foley, 46 Kan. 457; with Coward v. East Tennessee, etc., R. R. Co., 16 Lea (Tenn.) 275, compare Ry. Co. v. Sowell, 90 Tenn. 17, and Starnes v. Railroad, 91 Tenn. 518; with Brown v. Adams Express Co., 15 W. Va. 812, compare Zouch v. Chesapeake & Ohio R. Co., 36 W. Va. 524. In this connection the Ohio decisions are specially interesting. In Ry. Co. v. Simon, 15 Oh. Cir. Ct. Rep. 123, the lower court distinguishes the earlier Ohio cases of U. S. Express Co. v. Backman, 28 Oh. St. 144, and Pittsburg, etc., Ry. Co. v. Sheppard, 56 Oh. St. 68, and accepts the Hart case. On appeal the decision is affirmed on another ground, to wit, that the judgment of the Circuit Court involved the weight of the evidence, Ry. Co. v. Simon, 63 Oh. St. 598; but the opinion of the Supreme Court in Wells, Fargo & Co. v. Bell, 65 Oh. St. 408, shows, we believe, that it is not unlikely that Ohio will follow the federal decision.

12 See supra, note 7.

18 Hart v. Pennsylvania Railroad Co., 112 U. S. 331, 341; Georgia Southern Ry.