226 F. 38 | D. Minnesota | 1915
(after stating the facts as above). This motion by the defendant for a directed verdict is based upon two grounds, as 1 understand it, and in substance they are these: First, that the defendant railway company in the two particular shipments involved in (his controversy was the intermediate common carrier in interstate commerce, that the cause of action stated rests upon delay by the common carriers, or some of them, and that the evidence in this case not owy fails to show that the delay occurred on the line of the defendant .common carrier, but affirmatively shows that there was not any such delay. Second, thal no notice of claim for damages was given by the plaintiff’s intestate, such as is required by the contracts under which these shipments were made.
The evidence in the case shows that there were two shipments made by the plaintiff’s intestate from Montana to Chicago; via South St. Paul. The evidence further shows without contradiction that through bills of lading were issued covering the transportation of these cattle from (he two points in Moni ana, where the shipments originated, to Chicago; further, that there was a through -rate between the Montana points and Chicago, and that this through rate was charged and collected on these two shipments. The evidence further shows that when, the cattle arrived in South Bt. Paul they were unloaded, and reloaded into other cárs, and that at that time bills of lading from South Bt. Paul to Chicago were issued by the defendant company; the original hills, however, not being surrendered.
The evidence also tends to show that the tunning time between South St. Paul and Chicago was 24 hours; and it is admitled that the achual lime consumed by these two shipments was, in one case 29 hours and in the other ease 34 hours. The evidence also tends to show that there was a loss sustained on these two- shipments of
“That any common carrier, railroad, 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 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, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, 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 existing law.” Act June 29, 1906, c. 8591, § 7, 84 Stat. 595 (Comp. St. 1913, § 8592, par. 11).
There is nothing in the wording of that amendment which refers expressly to the initial common carrier; nor, on the other hand, is there anything which refers expressly to the intermediate common carrier; but it is provided in express language “that any common carrier, * * * receiving property for transportation from a point in one state to a point in another state,” first, shall issue a receipt or bill of lading therefor, and, secondly, shall be liable to the lawful holder thereof for certain specified losses.
At that time the different state courts by their decisions had adopted different rules relative to actions for damages by shippers against common carriers. In some states, in a case of interstate commerce,
flurh. briefly stated, was the situation when this Carmack amendment was passed by Congress. The purpose which Congress had in mind in passing the amendment is stated in the case of Atlantic Coast Line v. Riverside Mills, 219 U. S. 185, on page 196, 31 Sup. Ct. 164, or page 166, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7, where the Supreme Court in its opinion, says:
‘The imdisputable effect of tlie Carmack amendment is to hold the initial earner engaged in interstate commerce and ‘receiving property for transpor-1 ni ion from a point in one state to a point in another state’ as having contracted Cor through carriage to the point of destination, using the lines of connecting carriers as its. agents.”
Hie opinion, continuing further, says that there had grown up a custom among the railroads as follows:
“Those railway companies, though separate in themselves, are in the habit, for their own advantage, of mating contracts, of which this was one, to convey goods along the whole line, to the ultimate terminus, each of them being age ns of the other to carry them forward, and each receiving their share of the pcofits from the last.”
Further the opinion says;
“Along with this singleness of rate and continuity of carriage there grew up the practice by receiving: carriers, illustrated in this case, of refusing to make a specific agreement to transport to points beyond its own line, whereby the connecting- carrier for the purpose of carriage would become the agent of ihe primary carrier. The common form of receipt, as the court may judicial!.! know, is one by which the shipper is compelled to make with each carrier in the route over which his package must go a separate agreement limiting the carrier liability of each separate company to its own part of the ihrough route. As a result the shipper could look only to the initial carrier for recompense for loss, damage, or delay occurring on its part of the route. If such primary carrier was able to show a delivery to the rails of the next succeeding carrier, although the packages might and usually did continue the*42 journey in tlie same car in which they had been originally loaded, the shipper must fail in his suit. He might, it is true, then bring his action against the carrier so shown to have next received the shipment. But here, in turn he might be met by proof of safe delivery to a third separate carrier. In short, as the shipper was not himself in possession of the information as to when and where his property had been lost or damaged, and had no access ■to the records of the connecting carriers, who in turn had participated in some part of the transportation, he was compelled in niany instances to mate such settlement as should be proposed. This burdensome situation of the shipping public in reference to interstate shipments over routes including separate lines of carriers was the matter which Congress undertook to regulate. Thus, when this Carmack amendment was reported by a conference committee, Judge William Richardson, a Congressman from Alabama, speaking for the committee of the matter which it sought to remedy, among other things, said: ‘One of the great complaints of the railroads has been — and, I think, a reasonable, just, and fair complaint — that when a man made a shipment, say, from Washington, for instance, to San Francisco, Cal., and his shipment was lost in some way the citizen had to go thousands of miles, probably, to institute his suit. The result was that he had to settle his damages at what he could get. What have we done? We have made the initial carrier, the carrier that takes and receives the shipment, responsible for the loss of the article in the way of damages; We save the shipper from going to California or some other distant place to institute his suit. Why? The reasons for inducing us to do that were that the initial carrier has a through route connection with the secondary carrier, on whose route the loss occurred, and a settlement between them will be an easy matter, while the shipper would be at heavy expense in the institution of a suit. If a judgment is obtained against the initial carrier, no doubt exists but that the secondary carrier would pay it at once.’ ”
Still further the court in its opinion says:
“The ruie [under the Carmack amendment] is adapted to secure the rights of the shipper by securing unity of transportation with unity of responsibility. The regulation is one which also facilitates the remedy of one who sustains a loss, by localizing the responsible carrier.”
Finally it says:
“In substance Congress has said to such carriers: ‘If you receive articles for transportation from a point in one state to a place in another, beyond your own terminal, you must do so under a .contract to transport to the place designated. If you are obliged to use the services of independent carriers in the continuance of the transit, you must use them as your own agents, and not as agents of the shipper.’"
It seems to me that, in view of the opinion of the Supreme Court in that case, the real purpose of the Carmack amendment was to secure simplicity in the transportation of freight carried hy several common carriers — as the Supreme Court express it, “unity of transportation with unity of responsibility * * * by localizing the responsible carrier.” Now, if. that is the purpose of the amendment, the question arises: Would that purpose be effected by requiring each one, we will say, of seven connecting common carriers in an interstate shipment to issue a separate bill of lading? If this were done, we would have, on plaintiffs theory, seven common carriers, six of whom would stand in the position of principals to succeeding carriers, and also six in. the position of agents of the preceding carriers. All seven of them would stand in the position of principal, so far as their own lines- of railway were concerned. Instead of having localized the remedy, it would needlessly expand and extend it. For loss occurring
if diis Carmack amendment is intended to simplify, rather than to ronden' complex, interstate commerce and interstate shipments, and lo unify and simplify, rather than multiply and mystify, the remedies of the shippers in obtaining compensation for their losses, it seems to me that it cannot bear the construction, claimed by plaintiff, that ouch common carrier in the line may be sued, not only for its own default, but for that of any succeeding- carrier. The only case cited directly in point is the case of Looney v. Railway Co.,
Willi the highest respect for and deference to the court which decided the Rooney Case, I am nevertheless unable to assent to the conclusion. therein reached. The Carmack amendment specifically pro-rides that, when a common carrier receives property for transportation in interstate commerce, it shall issue a bill of lading. Tf that applies to each one of a line of carriers, then it is not optional with ilu: intermediate carrier whether to issue a bill of lading or not; and if the Carmack amendment applies, the last common carrier is also obliged to issue a bill of lading. It seems to me that such was not ibe intention of; Congress in passing the amendment. If the Car-mack amendment does not compel the intermediate carrier to issue a bill of lading, then the obligation cannot be assumed by the intermediate carrier by the issuance of a bill of lading; for that would be allowing the intermediate carrier to give at its option special privileges to a shipper, without having these special privileges set out In its tariff on file, anti that would be a violation of the Hepburn Act (Act June 29, 1906, c. 3591, 34 Stat. 534). So it seems to me that neither in the absence of a bill of lading, nor by issuing a bill of lading, can the intermediate carrier he held liable for loss or damage occurring on the line of the sucoeecting' carrier.
"T1k> parly of the second part further agrees, as a condition precedent to his right to recover any damages for any loss or injury to said stock, he will give notice in writing of Ms claim therefor to an officer of said first party, or to its nearest station agent, before said stock has been removed from said*44 place of destination, and before said stock lias been mingled with, other stock, when possible to do so, but in any event within 15 days.”
The loss or damage claim in this case was made in November. The first shipment arrived on October 22d, and the last one on October 29th, but no point is made that the claim was not presented within 15 days, and there is no defense of this kind set up in the answer.
My conclusion is, therefore, that the motion for a directed verdict in favor of the defendant must be granted on both grounds presented. It is so ordered, and an exception to the ruling will be allowed.