delivered the opinion of the court. He stated the facts in the foregoing language, and continued:
It is contended for the plaintiff that the bill of lading does not purport to limit the liability of - the defendant to the amounts stated in it, in the event of loss through the negligence of the defendant. But we are of opinion that the contract is not susceptible of that construction. The defendant receives the property for transportation on the terms and conditions expressed, which the plaintiff accepts “ as just and reasonable.” The first paragraph of the contract is that the plaintiff is to pay the rate of freight expressed, “ on the condition that the carrier assumes a liability on the stock to the extent of the following agreed valuation: If horses or mules, not exceeding two hundred dollars each. ... If a chartered car, on the stock and contents in same, twelve hundred dollars for the car load.” Then follow in the first paragraph, these words : “ But no carrier shall be liable for the acts of the animals themselves, dr to each other, such as biting, kicking, goring or smothering, nor for loss or damage arising from condition of the animals themselves, which risks, being beyond the control of the company, are hereby assumed by the owner, and the carrier *337 released therefrom.”- This statement of the fact that the risks from the acts anc1 condition of the horses are risks beyond the control of the defendant, and are, therefore, assumed by the plain-' tiff, -shows, if more were needed than the other language oí the contract, that the risks and liability assumed by the defendant in the remainder of the same paragraph are those not beyond, but within, the control of the defendant, and, therefore, apply to loss through the negligence of the defendant.
It must be presumed from the terms of the bil of lading, and without any evidence on the subject, and especially in the absence of any evidence to the contrary, that, as the rate of freight expressed is stated to be on the condition that the defendant assumes a liability to the extent of the agreed valuation named, the rate of freight is graduated by the valuation. Especially is this so, as the bill of lading is what its heading states it to be, “ a limited liability live-stock contract,” and is confined to live-stock. Although the horses, being race-horses, may, aside from the bill of lading, have been of greater real value than that specified in it, whatever passed between the parties before the bill of lading was signed was merged in the valuation it fixed; and it is not asserted that the plaintiff named any value, greater or less, otherwise than as he assented to the value named in the bill of lading, by signing it. The presumption is conclusive that, if the liability had been assumed on a valuation as great as that now alleged, a higher rate of freight would have been charged. The rate of freight is indissolubly bound up with the valuation. If the rate of freight named was the only one offered by the defendant, it was because it was a rate measured by the valuation expressed. If the valuation was fixed at that expressed, when the real value' was larger, it was because the rate of freight named was measured by the low valuation. . The plaintiff cannot claim a higher valuation, on the agreed rate of freight.
It is further contended by the plaintiff, that the defendant was forbidden, by public policy, to fix a limit for its liability for a loss by negligence, at an amount less than the actual loss by such negligence. As a minor proposition, a distinction is sought to be drawn between a case where a shipper, on re *338 quirement, states the value of the property, and a rate of freight is fixed accordingly, and the present case. It is ■ said, that, while in the former case the shipper may be confined to the value he so fixed, in the event of a loss by negligence, the same rule does not apply to a case where the valuation inserted in the contract is not a valuation previously named by the shipper. . But Ave see no sound reason for this distinction. The valuation named was the “agreed valuation,” the one on which the minds of the parties met, however it came to be fixed, and the rate of freight was based on that valuation, and Avas fixed on condition that such was the valuation, and that the liability should go to that extent and no further.
■ We are, therefore, brought back to the main question. It is the law of this court, that a common carrier may, by special contract, limit his common-law liability; but that he cannot stipulate for- exemption from the consequences of his OAvn negligence or that of his servants.
New Jersey Steam Nav. Co.
v.
Merchants' Bank,
In
York Co.
v.
Central Railroad,
In
Railroad Co.
v.
Lockwood,
In
Express Co.
v.
Caldwell,
On the other hand, in
Bank of Kentucky
v.
Adams Express Co.,
To the views announced in these, cases we adhere. But there is not in them any adjudication on the particular question
*340
now before us. It may, however, he disposed of on principles which are well established and which do not conflict with any of the rulings of this court. As a general rule, and in the absence of fraud or imposition, a common carrier is answerable ■for the loss of a package of goods though he is ignorant of its contents, and though its contents are ever so valuable, if he does not make a special acceptance. This is reasonable, because he can always guard himself by a special acceptance, or by insisting on being informed of the nature and value of the articles before receiving them. If the shipper is guilty of fraud of imposition, by misrepresenting the nature or value of the articles, he destroys his claim to indemnity, because he has attempted to deprive the carrier of the right to be compensated in proportion to the value of the articles and the consequent risk assumed, and what he has done has tended to lessen the vigilance the carrier would otherwise have bestowed. 2 Kent’s Comm. 603, and cases cited;
Relf
v.
Rapp,
3 Watts
&
Sergeant, 21;
Dunlap
v.
International Steamboat Co.,
The limitation as to value has no tendency to exempt from liability for negligence. It does not induce Avant of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for *341 negligénce. The compensation, for carriage is based on that value.. The shipper is estopped from saying that -the value is greater. The articles have no greater value, for the purposes of the contract -of transportation, between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where . there is" no deceit practised on the shipper, 'should be upheld. There is no violation of public policy. On the contrary, it would be u ijust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss.
•This principle is not a new one. In Gibbon v. Paynton, 4 Burrows, 2298, the sum of £100 was hidden in some hay in an old mail-bag and sent by a coach and lost. Tiie plaintiff knew of a notice by the proprietor that he would not be answerable for money unless he knew what it whs, but did not apprise the proprietor that there was money in the bag. The defence was upheld, Lord Mansfield saying: “ A common carrier, in respect of the premium he is to receive runs the risque of the goods, and must make good the loss, though it happen without any fault in him, the reward making him answerable for their safe delivery. His warranty and insurance is in respect of the reward he is to receive, and the reward ought to be proportionable to the risque. If he makes a greater warranty and insurance, he will take greater care, use more caution, and be at the expense of more guards or other methods of security; and, therefore, he ought, in reason and justice, to have a greater reward.” To the same effect is Batson v. Donovan, 4 B. & A. 21. 1
The subject-matter of a contract may be valued, or the damages in case of a breach may be liquidated in advance. In the present case, the plaintiff accepted the valuation as “ just and reasonable.” The bill of lading did not contain a valuation of 'all animals at a fixed sum for each, but a graduated valuation^,according to the nature of the animal. It does not appear *342 that an unreasonable price' would have been charged for a higher valuation..
The decisions in this, country are at- variance. The rule which we regard as the proper one in the case at bar is supported in
Newburger
v.
Howard, 6
Philadelphia Rep. 174;
Squire
v.
New York Central R. R. Co.,
As relating to the question of the exemption of a carrier from liability beyond a declared value, reference ’ may-be made so section 4281 of the Revised Statutes of the United States (a re-enactment of section 69 of the act of February 28, 1871, ch. 100, 16 Stat. 458), which provides, that if any shipper of certain enumerated articles, which are generally articles of large value ill small bulk, “ shall lade the same, as freight or baggage, on any vessel, without at the time of such lading giving to the master, clerk, agent, or owner of such vessel receiving *343 the same,' a written notice of the true character and value thereof, and having the same entered on the bill of lading therefor, the master and owner of such vessel shall not be liable as carriers thereof in any form of manner, nor shall any such master or owner be-liable for any such goods beyond the value and according to the character .thereof so notified and entered.” The principle of this statute is in harmony with the decision at which we have arrived.
The plaintiff did not, 'n the course of the trial, or by any request to instruct the jury, or by any exception to the charge, raise the point that he did not fully understand the terms of the bill of lading, or that he was induced to sign it by any fraud or under any misapprehension. On the contrary, he offered and read in- evidence the bill of lading, as evidence of the contract on which he sued.
The distinct ground of our decision in the case at bar is, that where a contract of the kind, signed by the shipper, is fairly made, agreeing on the valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due; proportion between the. amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations.
Squire
v.
New York Central R. R. Co.,
There was-no error in excluding the evidence offered, or in the charge to the jury, and the judgment of the Circuit Court is Affirmed.