Hercules Powder Co. v. Pennsylvania Railroad Co.

• Decision Date: 01 July 1922
• Citation: 122 A. 546,32 Del. 309
• Court: Delaware Superior Court
• Parties: HERCULES POWDER CO. v. THE PENNSYLVANIA RAILROAD CO

122 A. 546

32 Del. 309

HERCULES POWDER CO. v. THE PENNSYLVANIA RAILROAD CO

Superior Court of Delaware, New Castle County

July 1, 1922

[Copyrighted Material Omitted]

Superior Court for New Castle County, November Term, 1921.

Demurrer No. 19, January Term, 1921.

The facts appear in the opinion of the Court.

Brief of Attorneys for Plaintiff on Demurrer.

The terms and conditions of the bill of lading, as set out in the fourth plea, became inoperative during the period of federal control.

The common-law liability of carriers for loss of or injury to goods and the reasons for such rule stated. 10 C. J. 107 et seq., and cases cited.

Prior to the passage of the Carmack Amendment to the Hepburn Act (34 Stat. 595, 4 F. Stat. Ann. 506 [U.S. Comp. St §§ 8604a, 8604aa]), the common-law rule, with regard to liability for loss and damage to property on interstate, as well as intrastate shipments, was subject to state regulation.

Congress by this act provided, among other things, that the carrier must issue to the shipper a receipt or bill of lading; that it should be liable to the lawful holder thereof for any loss, damage or injury to property caused not only by the issuing carrier but by any connecting carrier; and that no contract, receipt, rule or regulation should exempt such common carrier from the liability thus imposed.

After the Carmack Amendment, all state laws and regulations and rulings of state courts became null and void and were superseded by the federal regulations with respect to all shipments from one state to another. 2 Robert's F. Carriers, § 27, and cases cited.

In the further exercise of federal control, Congress, also, established by the Cummins Amendment of March 4, 1915, a minimum period of limitations for giving notice of claims, for filing claims and for bringing suits. It provided:

"That it shall be unlawful for any such common carrier to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years." 24 Stat. 386, as amended by 34 Stat. 595, and 38 Stat. 1196, 4 F. Stat. Ann. (2d Ed.) 507 (U.S. Comp. St. § 8604a).

(a) Facts of which the court will take judicial notice.

The declaration alleges that the goods were shipped from Johnstown, Pa., on November 16, 1917, and the plea alleges that a part of them arrived at Hercules, Cal., on February 4, 1918.

The court will take judicial notice of the fact that while these goods were in transit the President's Proclamation of December 26, 1917, taking over the railroads, under the authority of the Army Appropriation Act of August 29, 1916 (39 Stat. 622), was issued.

On March 21, 1918, Congress passed an act, providing for the operation of railroads while under federal control. F. Stat. Ann. 1918 Supp. 757 (U.S. Comp. St. §§ 3115 3/4--3115 3/4p.)

Federal control of the railroads did not terminate until March 1, 1920. Transportation Act 1920, 41 Stat. 456, F. Stat. Ann. 1920, 72.

Therefore, for more than two years after a part of the goods in question arrived at Hercules, Cal., the plaintiff could reach the defendant only through the medium of federal agents. Mardis v. Hines (D. C.), 258 F. 945; No. P. Ry. Co. v. No. Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897.

With this situation in mind, Congress when returning the railroads to their owners provided:

"The period of federal control shall not be computed as a part of the periods of limitation in actions against carriers or in claims for reparation to the commission for causes of action arising prior to federal control." Transportation Act. 1920, 41 Stat. 462, F. Stat. Ann. 1920 Supp. 79.

That this provision refers to periods of limitation, contained in uniform bills of lading under the Cummins Amendment to the Carmack Amendment to the Hepburn Act, is obvious:

First. Because the periods of limitation set forth in such bills of lading are the only periods of limitation applicable to interstate shipments; and

Second. Because the provisions would have little, if any, operation if it did not apply to cases such as the one at bar. Lazarus v. N.Y. Central R. R. Co. (D. C.), 271 F. 93.

(b) The terms and conditions of the bill of lading, as alleged in the fourth and sixth pleas, are unlawful and wholly void.

Assuming for the sake of argument that the Transportation Act of 1920 does not extend the period of limitation provided for in the Cummins Amendment, it is, nevertheless, submitted that this amendment has been erroneously construed by the carrier.

This act does not provide from what date the periods of limitation therein provided are to be computed.

The carrier construing the Cummins Amendment provided in the bill of lading that:

"Suits of loss, damage or delay shall be instituted only within two years and one day after delivery of the property or in case of failure to make delivery then within two years and one day after a reasonable time for delivery has elapsed."

That this construction of the Cummins Amendment was erroneous has not been declared by Congress, which by subsequent amendment added the following paragraph:

"Such period for institution of suits to be computed from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice." 41 Stat. 494, F. Stat. Ann. 1920 Supp. 119.

A legislative body may by statute declare the construction of previous statutes and may, in many cases, thus furnish the rule to govern the courts in transactions which are past, provided no constitutional right of the party concerned is violated. 25 R. C. L. 1047, 1049.

In the present case Congress by subsequent legislation, without interfering with any constitutional or vested rights of the carrier, and without changing the period of limitation which may be prescribed by it, has defined its own terms and construed its own act.

The limitation of an action is a matter of remedy, and not of right, and an extension of the remedy does not affect a vested right. Terry v. Anderson, 95 U.S. 628, 24 L.Ed. 365; Lewis' Southerland, Stat. Con. (2d Ed.) § 668; 36 Cyc. 1142.

The fourth and sixth pleas are, therefore, bad, because the carrier has failed to allege that the suit was not brought within two years after notice in writing was given by the carrier to the claimant that the carrier had disallowed the claim.

(c) The fifth plea attempts to set up a defense which is contrary to the express provisions of the Cummins Amendment.

This amendment, as finally amended by Act of August 9, 1915 (39 Stat. 441, F. Stat. Ann. 1918 Supp. 387 [U.S. Comp. St. §§ 8592, 8604a]), establishes the old absolute common-law liability of a common carrier, and does not permit the carrier to plead any limitation on its liability, except as to value, in matters of baggage and other property where rates dependable upon the declared value are authorized, or required by order of the Interstate Commerce Commission. Cin., N. O. & T. P. R. Co. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 60L. Ed. 1022, L. R. A. 1917A, 265; Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L. R. A. (N. S.) 257.

The matters alleged in the fifth plea, therefore, do not come within any exception of the absolute liability of the carrier.

Even if the carrier might be relieved of its liability under proper contract, it nowhere appears in the fifth plea that the consignor of said goods undertook to furnish and did furnish the car used for the transportation of said goods for a sufficient consideration. The common-law rule stated. Hutchinson on Carriers (3d Ed.) § 508 (497, 498); Moore on. Carriers, § 115; 10 C. J. 87; Seaboard Air Line R. Co. v. McRae, 14 Ga.App. 94, 80 S.E. 211 Ogdensburg, etc., R. Co. v. Pratt, 89 U.S. (22 Wall.) 123, 22 L.Ed. 827.

Even if the carrier by proper contract might be relieved of its liability, it nowhere appears in the fifth plea that the alleged defects were such that an ordinary inspection by the consignor would bring them to its attention, or that the consignor knew of the defective condition of the said car at the time the goods were loaded, or that the consignor in any way released the said defendant from liability for injuries resulting from the said defective vehicle. L. & N. R. R. Co. v. Carr, 77 Fla. 469, 5 A. L. R. 102, 81 So. 779, is exactly in point. Hutchinson on Carriers (3d Ed.) § 508 (501, 502); 10 C. J. 87; L. &. N. R. R. Co. v. Dies, 91 Tenn. 177, 18 S.W. 266, 30 Am. St. Rep. 871; Forrester v. Southern R. Co., 147 N.C. 553, 61 S.E. 524, 18 L. R. A. (N. S.) 508, 15 Ann. Cas. 143; Pierce Co. v. Wells F. & Co., 236 U.S. 278, 35 S.Ct. 351, 59 L.Ed. 576; Santa Fe, P. & P. R. Co. v. Grant Bros. Const. Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787; Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L. R. A. (N. S.) 257; Atlantic Coast Line R. Co. v. Coachman, 59 Fla. 130, 52 So. 377, 20 Ann. Cas. 1047; Summerlin v. Seaboard Air Line R. Co., 56 Fla. 687, 47 So. 557, 19 L. R. A. (N. S.) 191, 131 Am. St. Rep. 164; 10 C. J. 154, 155; 4 R. C. L. 767. See, also, Cin., etc., Co. v. Fairbanks & Co., 90 F. 467, 33 C. C. A. 611.

Defendant's Brief in Support of Pleas.

1. The bill of lading set out in the plea was drawn pursuant to the Cummins Amendment of 1915. Prior to the passing of this amendment the Carmack Amendment of 1906 was in force. It, in substance, provided that bills of lading should be issued for property received for transportation by a common carrier from one state to another, and that the receiving carrier should be liable for any loss of or damage to such goods, whether occurring...