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Home > Journals > Michigan Law Review > MLR > Volume 8 > Issue 7 (1910)

 

Abstract

When Mr. Justice Nelson, in the New Jersey Steam Navigation Company v. Merchants' Bank, speaking of the power of a common carrier by special agreement to restrict his obligation, said for the court: "We are unable to perceive any well founded objection to the restriction," he opened the way for an amount of litigation which, in volume and expense, both to carriers and shippers, scarcely finds its equal on any other question. The Supreme Court of North Carolina was well within the limit when it said: "The right of a common carrier to limit or diminish his general liability by a special contract has given rise to as much, if not more discussion and contrarieties of opinion than any other question of law." Mr. Schouler, in his work on Bailments and Carriers, has well said: "The reports bear ample record of the unflagging perseverance with which the common carriers seek to make decreased responsibility to the public the price of affording to the public increased facilities of transportation; of his quickness in coaxing, entrapping, even coercing, his customers in accomplishing this furtherance of his own ends." The far reaching consequences of a single sentence in a judicial opinion, concerning what had generally been, and may still be, regarded as at best a doubtful question, can hardly be better exemplified than by the consequences flowing from the opinion of Mr. Justice Nelson, above referred to. Indeed, now, after sixty-one years, there is no evidence of any diminution in the volume of litigation on the questions involved in that opinion. It might be supposed that, after the thousands of times in which the courts have reiterated the doctrine, which is undoubtedly established, that a common carrier cannot by a special contract secure exemption from liability for the results of his negligence, it would no longer be necessary to refer to that principle. A casual examination of the current digests will speedily show that this is not the case. The current reports are full of cases in which the courts consider it necessary to reiterate this long established principle, and of cases in which attorneys for different carriers are urging upon the attention of the courts contracts intended to secure these forbidden exemptions. A single illustration may suffice to stand for many cases that might be referred to. The Court of Civil Appeals of Texas as late as 1908 was asked to hold that the trial court had committed error in not upholding a contract limiting the liability of a carrier to loss due to his gross negligence. The higher court felt called upon to say: "A common carrier cannot by contract relieve itself from liability for loss or injury arising from its negligence," a principle which it would seem might now be accepted without further restatement. On this whole subject an extended and interesting note will be found in Volume 88 of the American State Reports, page 74.

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