Central of Georgia Ry. Co. v. Kavanaugh

92 F. 56, 34 C.C.A. 203, 1899 U.S. App. LEXIS 2110

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 24, 1899
• Docket: No. 765
• Status: Published

Opinion

PARDEE, Circuit Judge

(after stating the facts as above). The contract of transportation in this case stipulates for a through carriage of goods. It is styled at its head “Through Bill of Lading.” It contracts for the delivery of the goods at Chattanooga, their destination, and stipulates for a through rate of freight, and, in terms, attempts to limit the carrier’s liability, except on its own lines, as follows:

“Kach carrier shall be bound (subject to the limitations and exceptions contained in this contract) to deliver said goods in the same order and condition as that in which it received them; and the ultimate carrier to deliver them at its station or wharf, to the consignee or his assigns, if called, for by him or them, as in this contract provided, he or they paying freight and charges thereon, and average, if any. It is mutually agreed, in consideration of rates herein guarantied, that the liability of each carrier as to goods destined beyond its own route, shall be terminated by proper delivery of them to the next succeeding carrier.”

The bill is a through bill of lading, aside from the fact that the attempt at limiting liability is wholly inconsistent with any other view of the contract than that it is, and was intended to be, a through bill. As the contract was a Georgia contract, it is pertinent to cite, as to the character of the same, Central R. Co. v. Dwight Mfg. Co., 75 Ga. 609; Railway Co. v. Pritchard, 77 Ga. 412, 1 S. E. 261; Atlanta & W. P. R. Co. v. Texas Grate Co., 81 Ga. 610, 9 S. E. 600; and Railroad Co. v. Hasselkus, 91 Ga. 382, 17 S. E. 838.

Civ. Code Ga. 1895, § 2276, reads as follows:

“A common carrier cannot limit his legal liability by any notice given, either by publication or by entry on receipts given or tickets sold. He may make an express contract and will then be governed thereby.”

The construction of this section by the supreme court of Georgia is to the effect that a common carrier receiving goods for through shipment over its own and other lines cannot confine its liability to damages on its own line, and relieve itself from negligence and damage on the lines of connecting carriers, except by an express contract assented to by the shipper, and that the mere acceptance by the shipper of a bill of lading containing a provision confining the general responsibility of the contracting carrier to liability for negligence and damages on its own line is not sufficient under the statute. Express Co. v. Purcell, 37 Ga. 103; Railroad Co. v. Spears, 66 Ga. 490; Railroad Co. v. Gann, 68 Ga. 350; Central R. Co. v. Dwight Mfg. Co., 75 Ga. 609; Railroad Co. v. Hasselkus, 91 Ga. 382, 17 S. E. 838.

If the Georgia law, as construed by the supreme court, should prevail as to the contract in this case, the finding of the master and the decree of the court affirming the same are conceded to be correct. Counsel for appellant, however, contends thát the Georgia law should not prevail, and that this court should not be controlled by the judicial decisions of the state where the contract of carriage was made, but should follow the common-law rule, as declared by the courts of the United States. His main reliance is upon Myrick v. Railroad Co., 107 U. S. 102-107, 1 Sup. Ct. 425, 429, which decides:

“The general doctrine, then, as to transportation by connecting lines, approved by this court, and also by a majority of the state courts, amounts to this: That each road, confining itself to its common-law liability, is only bound, in the absence of a special contract, to safely carry over its own route, and safely to deliver to the next connecting carrier, but that any one of the companies may agree that over the whole route its liability shall extend. In the absence of a special agreement to that effect, such liability will not attach, and the agreement will not be inferred from doubtful expressions or loose language, but only from clear and satisfactory evidence.”

The supreme court have had frequent occasion to cite the Myrick Case with approval, but have found it proper to declare that it is only-applicable in the absence of a controlling statute. Railway Co. v. Prentice, 147 U. S. 101, 106, 13 Sup. Ct. 261; Railroad Co. v. Baugh, 149 U. S. 368, 375, 13 Sup. Ct. 914; and Railway Co. v. Solan, 169 U. S. 133, 136, 18 Sup. Ct. 289.

In this last-mentioned case the proposition is stated as follows:

“The question of the -right of a railroad corporation to contract for exemption from liability for its own negligence is, indeed, .like other questions affecting its liability as a common carrier of goods or passengers, one of those questions, not of merely local law, but of commercial law or general jurisprudence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the state in which the cause of action arises. But the law to be applied is none the less the law of the state, and may be changed by its-legislature, except so far as restrained by the constitution of the state or by the constitution or laws of the United States.”

From this it is clear that the common-law rule declared in the Myrick Case is not to be applied when there is an express statute of the state where the transportation contract is entered into, regulating the matter. And see Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397-447, 9 Sup. Ct. 469 et seq. Section 2276 of the Georgia Civil Code is an express statute providing how the carrier may relieve himself of 'liability by contract. The true construction of this statute has been settled by an unbroken line of decisions. by the supreme court of Georgia. In general, the construction given to a state statute by the highest court of the state will be followed by the courts of the United States. It is therefore clear to this court that the master, in applying section 2276 of the Georgia Civil Code, as construed by the supreme court of Georgia, to the facts of this case, did not err, and that the decree of the court based on the master’s report was correct, and should be affirmed; and it is so ordered.