243 U.S.

574
37 S.Ct. 468
61 L.Ed. 908

PENNSYLVANIA RAILROAD COMPANY, Plff. in Err.,

v.
OLIVIT BROTHERS.
No. 577.
Argued April 9 and 10, 1917.
Decided April 30, 1917.

Messrs. Frederic D. McKenney, John Spalding Flannery, Albert C. Wall,

and John A. Hartpence for plaintiff in error.
[Argument of Counsel from pages 575-576 intentionally omitted]
Messrs. Edward P. Stout and George S. Hobart for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:

This is a consolidation of actions, each action expressed in a number of counts,

and each count praying for the recovery of the sum of $500 for a carload of
watermelons received, as it is alleged, and accepted by the railroad company to
be transported and delivered within a reasonable time to plaintiff at Jersey City,
New Jersey, and alleging that by reason of the failure so to transport and
deliver, a large number of the melons were wholly lost and the remainder
delivered in a bad and damaged condition.

The car numbers are given, the places of receipt, all of which were in North
Carolina, and the dates, all between July 26 and August 2, 1912, both dates
inclusive.

The answers of defendant denied the allegations of the complaint and set up,
besides, the following defenses: If the property came into the hands of
defendant for the purpose of transportation, it did so as to each and every count
of the complaint under the terms and conditions of a certain bill of lading issued
to plaintiff by the initial carrier of the property, pursuant to the provisions of

the Interstate Commerce Act, constituting an express agreement whereby the

defendant was to be relieved from any and all liability for damage to the
property resulting from delay in transportation and delivery if the delay was
caused by (a) a strike or strikes among defendant's employees; (b) an
accumulation of freight at any point; (c) or by any other cause or causes over
which defendant had no control.
4

It is alleged that a strike did take place among defendant's employees and
continued from July 9, 1912, to the 21st of that month, which strike was the
cause of the alleged delay; also that an accumulation of freight did occur at
Jersey City, which continued from July 9 to August 15 and beyond.

It is further alleged as a defense that no claim for the loss or damage to the
property was made in writing, as required by the respective bills of lading of
defendant at the point of delivery of the property within ten days after its
delivery, or after due time for its delivery to plaintiff, though it was agreed
between plaintiff and defendant that such claim should be made at the time,
place, and in the manner mentioned.

Nor was there any claim for such loss or damage made in writing to defendant
at the point of delivery or point of origin within four months after the delivery
of the property, or after a reasonable time for delivery, though it was expressly
agreed that such claim should be made at the time, place, and in the manner
mentioned, and, if not so made, defendant should not be liable.

It will be observed, therefore, that the basis of the action is that certain carloads
of watermelons were received for shipment by defendant at certain places in
North Carolina for transportation to and delivery at Jersey City, New Jersey,
and that defendant failed to transport and deliver the same within a reasonable
time, in consequence of which a large number of the melons were lost and the
others delivered in a bad condition.

In point of fact the melons were not delivered to defendant in North Carolina,
but in such state to a carrier with which defendant had connections, and were
delivered to defendant at Edgemoor, Delaware, to be transported from there to
Jersey City, and were so transported.

The melons were transported on through bills of lading issued by the initial
carrier, which contained the stipulations upon which the defenses are based, to
wit: (1) That the delay in transportation and delivery was caused by a strike,
accompanied by demonstrations of violence over which defendant had no

control and against which it could not contend; (2) that there was a congestion
of freight, due to causes beyond its control; and (3) that claims for damages
were not made within the time required by the bills of lading,that is, within
ten days in some cases, thirty days in others, and four months in others.
10

The ultimate basis of these defenses is the Carmack Amendment to the

Interstate Commerce Act. What this amendment requires of shipper and carrier
becomes the question in the case.

11

The case involves, as we have said, a number of actions tried together and
submitted to one jury. Plaintiff was plaintiff in all of them and obtained
judgment which was affirmed by the court of errors and appeals on the
authority of another case of like kind.

12

There was a stipulation which concentrated the issues and removed from
controversy the amounts involved. For instance, as to the latter it was stipulated
that the value of the melons at the time and place of shipment was $13,465, and
that they were sold at the place of delivery for $8,895, being the best price
which could be obtained for them, owing to their damaged condition. And it
was further stipulated that the freight charges paid by plaintiff amounted to the
sum of $5,484.59.

13

As to the other elements, it was stipulated that the melons were received and
accepted by defendant at Edgemoor, Delaware, for transportation to Jersey
City, New Jersey, in accordance with the bills of lading; that the usual and
customary time for transportation was about seven hours, under the most
favorable circumstances; that plaintiff was, at the time of bringing the actions,
and is now, the lawful holder of the bills of lading; that the melons were
received at Edgemoor by defendant in apparently good order, but were in a
damaged condition when delivered to plaintiff at defendant's delivery yard at
Jersey City, and that claims for damages were duly made in writing, as required
by the bills of lading.

14

The cases are designated as the '64-count case,' the '13-count case,' and the '11count case.' All of the bills of lading in the '64-count case,' one in the '13-count
case,' and four in the '11-count case,' contain a provision exempting the carrier
from liability for loss or damage resulting 'from riots or strikes.' Twelve of the
bills of lading in the '13-count case' and seven in the '11-count case' provide
that the carriers should 'not be liable for any injury to or decay of fruits or
vegetables, or other perishable freight due to detention or delay occasioned by
an accumulation of freight at any point . . . or to any other causes over which

the carriers have no control.' And there is difference in times of demands.

15

A motion is made to dismiss on the ground that no Federal question appears in

the record, or alternatively, if one appears, it is without merit. In support of the
contentions it is said the questions in the case are (1) whether, it being
stipulated that plaintiff was the holder of the bills of lading, it was the owner of
the melons at the time the shipments were made; (2) whether there was any
evidence of negligence of defendant which should have been submitted to the
jury; and (3) whether plaintiff was entitled to recover the freight paid by it.

16

The first question involves the Carmack Amendment; and, considering it, the
court of errors and appeals decided that 'any lawful holder of a bill of lading
issued by the initial carrier pursuant to the Carmack Amendment . . . upon
receiving property for interstate transportation, may maintain an action for any
loss, damage, or injury to such property caused by any connecting carrier to
whom the goods are delivered.' [88 N. J. L. 235, 96 Atl. 588.] Citing Adams
Exp. Co. v. Croninger, 226 U. S. 491, 57 L. ed. 314, 44 L.R.A.(N.S.) 257, 33
Sup. Ct. Rep. 148.

17

We are not prepared to say that a contest of this view is frivolous, and the
motion to dismiss is denied. Besides, it is contended that the shipments having
been in interstate commerce, they are subject to and governed by the Interstate
Commerce Act.

18

Coming to the merits of the question, however, we concur with the court of
errors and appeals in its construction of the Carmack Amendment. It provides:
'That any common carrier . . . 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 [italics ours] thereof for any
loss, damage, or injury to such property caused by it. . . .' [34 Stat. at L. 595,
chap. 3951, Comp. Stat. 1913, 8592.]

19

The crucial words are 'lawful holder.' Defendant contends that they mean 'the
owner or someone shown to be duly authorized to act for him in a way that
would render any judgment recovered in such an action against the carrier res
adjudicata in any other action.' And 8 of the Interstate Commerce Act is
referred to as fortifying such view. It provides that 'such common carrier shall
be liable to the person or persons injured' in consequence of any violations of
the act.1

20

To accept this view would make 8 contradict the Carmack Amendment (

20), it having only a general purpose, whereas the purpose of the amendment is
special and definitely expresses the lawful holder of the bill of lading to be the
person to whom the carrier shall be liable 'for any loss, damage, or injury' to
property caused by it. Adams Exp. Co. v. Croninger, supra.
21

The next contention of defendant is that there was error in applying the burden
of proof upon the motion to direct a verdict for defendant.

22

The grounds of the contention urged at the trial and now repeated are that, by
certain of the bills of lading, the carrier is relieved from liability in case of a
strike, by certain others in case of delays occasioned by causes beyond its
control, and by others in case of an accumulation of freight proved to be a
matter beyond the control of the carrier. And these causes having been proved,
it is contended the carriers were brought within the protection of the
stipulation, and it became incumbent upon plaintiff to show that defendant, in
one way or another, failed 'to handle the situation at that time in a way which
was free from negligence.' It was and is contended that the whole issue was
shifted 'form the general allegation of negligence to the allegation that the
injury was caused because the defendant failed to perform the duty which it
was obliged to perform under the law.' Counsel concede that the whole question
was whether, when the proof was that 'there was the excepting cause,'
defendant did what it 'should have done to meet the situation;' and the burden
was upon the plaintiff to show that the carrier did not do what it 'ought to have
done.'

23

The court rejected the contention. It replied that merely proving an

accumulation of freight or a strike did not shift the burden of proof, but that to
complete its defense the carrier must show that the strike or the accumulation
of freight caused the delay in executing its contract to deliver the property.

24

If we should grant that the ruling was technically erroneous, its effect in the
case can hardly be estimated, in view of the instructions of the court to the jury,
entirely considered. They are too long to quote, but we may say of them that
they were very carefully expressed to give the jury the elements of decision.

25

The court told the jury that defendant had proved a cause beyond its control;
that is, a strike; and, at the request of defendant, further instructed that if no
negligence on the defendant's part was shown, defendant was not liable, and
that the burden of proving such negligence was upon the plaintiff. A like
instruction was given as to any cause beyond defendant's control, including an
accumulation of freight, if reasonable care was exercised by defendant to

relieve the situation, that negligence was not to be presumed, but must be
affirmatively proved; and that the burden of proving it was upon plaintiff. 'The
question is,' the court said, 'whether or not, in the light of what occurred over
there, the defendant in this case has been shown by the greater weight of the
evidence to have been negligent in the forwarding and the delivery of this
freight. If it has been, why these plaintiffs are entitled to recover and to have
you assess their damages, unless some of these other defenses have been made
out by the greater weight of the evidence. If the defendant has not been shown
to have been negligent in the particular indicated, why, then, manifestly, the
defendant is not responsible, and the verdict in all the cases where these rules
apply would have to be for the defendant.'
26

Defendant, however, contended that there was not sufficient evidence of

negligence to justify the submission of the case to the jury. Counsel, in
attempted support of the contention, select certain elements in the case,
ignoring others and their probative value. That is, counsel ignore the fact, of
which there was evidence, that the melons were received for shipment after the
strike was over, and the fact, of which there was evidence, that the delay in
delivery was caused by the use by defendant of tracks where melons were
usually delivered for the delivery of peaches, usually delivered elsewhere, to
the exclusion of melons, which were placed in storage tracks at the 'meadows.'

27

The fourth contention is that plaintiff should not recover as part of its damages
the freight paid upon delivery at destination.

28

The contention is rested upon the prohibition of the Interstate Commerce Act
against deviation from the filed tariffs and schedules and against rebates and
undue preferences and discriminations. It is not asserted in the present case that
there was an evasion of the statute or an attempt to evade, but that the
possibility of such result makes the recovery of freight illegal. It is urged,
besides, that the melons were carried to destination and were there sold by
plaintiff or on its account, and that freight thereby accrued and was properly
paid. For which 2 Hutchinson on Carriers, 3d ed. 802, is cited. But the cited
authority shows that to be the rule when the loss or damage results from no
fault or negligence of the carrier. And, besides, to the contentions the plaintiff
opposes the terms of the bills of lading, they providing that the amount of loss
or damage for which a carrier is liable 'shall be computed on the basis of the
value of the property (being the bona fide invoice price, if any, to the
consignee, including the freight charges, if paid) at the place and time of
shipment. . . .'

29

Some of the bills of lading do not contain this provision, but it was agreed at

the trial that the proper measure of damages was to be computed upon the basis
of the value of the property at the place and time of shipment and that such
measure should be read into all of the bills of lading. As plaintiff further says,
to recover the damages sustained by it, based upon this value, plaintiff must
receive from defendant the difference between this value and the proceeds of
the sale, and the freight paid. In this we concur, and therefore there was no
error in including in the recovery such freight. Shea v. Minneapolis, St. P. & S.
Ste. M. R. Co. 63 Minn. 228, 65 N. W. 458; Davis v. New York, O. & W. R.
Co. 70 Minn. 37, 44, 72 N. W. 823; Horner v. Missouri P. R. Co. 70 Mo. App.
285, 294; Tibbits v. Rock Island & P. R. Co. 49 Ill. App. 567, 572. The plaintiff
was no more than made whole.
30

Affirmed.

'Sec. 8. That in case any common carrier subject to the provisions of this act
shall do, cause to be done, or permit to be done any act, matter, or thing in this
act prohibited or declared to be unlawful, or shall omit to do any act, matter, or
thing in this act required to be done, such common carrier shall be liable to the
person or persons injured thereby for the full amount of damages sustained in
consequence of any such violation of the provisions of this act, together with a
reasonable counsel or attorney's fee, to be fixed by the court in every case of
recovery, which attorney's fee shall be taxed and collected as part of the costs in
the case.' 24 Stat. at L. 382, chap. 104, Comp. Stat. 1913, 8572.