Missouri Pacific Railroad Co. v. Porter

• Decision Date: 16 February 1925
• Docket Number: 181
• Citation: 269 S.W. 47,168 Ark. 22
• Parties: MISSOURI PACIFIC RAILROAD COMPANY v. PORTER
• Court: Arkansas Supreme Court

269 S.W. 47

168 Ark. 22

MISSOURI PACIFIC RAILROAD COMPANY v. PORTER

No. 181

Supreme Court of Arkansas

February 16, 1925

Appeal from Pulaski Circuit Court, Third Division; Marvin Harris Judge; affirmed.

Judgment affirmed.

E. B Kinsworthy and R. E. Wiley, for appellant.

It is not denied that this shipment constituted foreign commerce. The power to regulate commerce given to Congress by the Constitution is exclusive, and a regulation of foreign commerce by the Congress under that power is exclusive and supersedes any State statute or rule. Cons. U. S. Art. 1 § 8. Where Congress has entered the field and assumed control of the subject, the the law applicable to every case within that subject is determined by Federal legislation, and the common law rules as applied in Federal tribunals, 241 U.S. 327, 60 L.Ed. 1022; 240 U.S. 612, 60 L.Ed. 827; 243 U.S. 592, 61 L.Ed. 921; 107 U.S. 102, 27 L.Ed. 325. If Congress has entered a certain field of regulation by passing legislation relative to the subject, the States are restrained from doing so, although Congress may not have covered the entire field or enacted anything inconsistent with the particular State regulation sought to be applied. 222 U.S. 370, 56 L.Ed. 237; 236 U.S. 439, 56 L.Ed. 661; 242 U.S. 255, 61 L.Ed. 276; 237 U.S. 597, 59 L.Ed. 1137, 1140: 162 P. 111; 212 Mo. 658; 19 L. R. A. (N. S.) 326; 236 U.S. 439, 59 L.Ed. 661, 665; 244 U.S. 147, 61 L.Ed. 1045; 222 U.S. 424, 56 L.Ed. 257; 76 So. 505; Cummins Amendment, 4 Fed. Star. Ann. (2nd Ed.) 506, 507.

The Federal law applicable here permits the carrier to stipulate for exemption from liability for loss by fire. 226 U.S. 491; 112 U.S. 331, 28 L.Ed. 717, 720; 194 U.S. 427, 48 L.Ed. 1053; 204 U.S. 505, 51 L.Ed. 590; 279 F. 929, 933

J. C. Marshall, for appellee.

If Crawford & Moses' Digest, § 843-844 controls, that ends the controversy, because it prohibits any contract or rule or regulation which limits the common law liability of a carrier. That statute, we contend, does apply to this shipment. 169 U.S. 133; 28 L. R. A. 718; 128 N.W. 663, 115 N.W. 230; 80 S.W. 488; 25 L. R. A. (N. S.) 938; 64 S.W. 511; 22 L. R. A. 335; 3 L. R. A 129; 70 N.W. 508; 64 S.E. 38; Id, 35; 3 L. R. A. (N S) 183; 94 Ark 407; 101 Ark 310; 111 Ark 102.

The Carmack Amendment is confined by its terms to interstate shipments. The Cummins Amendment enlarged its scope by including shipments to adjacent foreign countries saying nothing about export or import shipments which pass from or to nonadjacent foreign countries. Therefore, as held by the interstate commerce commission and by Federal and State courts, the Carmack and Cummins Amendments have no application to these last-named shipments. 212 F. 324; 281 Fed. (C. C. A.) 385; 114 Alt. (Md.) 905; 52 I. C. C. 671; Roberts, Fed. Liability of Carriers, §§ 322, 327. The statute has no application to interstate shipments, as was held of the Iowa statute (Ry. v. Cramer, 232 U.S. 490), but until counsel can point to a Federal statute which has done the like as to the inland haul of shipments to or from nonadjacent foreign countries we must maintain that our statute is still intact as to that. 61 Mass. 53; 46 S. E. (Va.) 911; Traffic Law, § 2005; Id. § 3037 A; 91 L. R. A. (Va.) 511; 150 Ark. 571; 209 U.S. 56; 101 Ark. 313; 244 U.S. 147; 169 U.S. 613; 234 U.S. 412; 236 U.S. 434; 187 U.S. 137; 219 U.S. 453; 234 U.S. 280; 128 U.S. 96; 165 U.S. 628. See also 254 U.S. 357. Where Congress has not spoken at all, but the State by taxation or other regulation has attempted to impose a burden upon commerce, the silence of Congress restrains the State from making the regulation; but where the State's action is not a burden upon commerce, then it must stand, unless Congress has spoken to the contrary on the same matter of regulation. 265 U.S. 298.

OPINION

HUMPHREYS, J.

Appellees brought suit against appellant in the circuit court of Pulaski County, Third Division, to recover the value of seventy-five bales of cotton which they shipped from Earle, Arkansas, to Liverpool, England, on an export bill of lading, which was destroyed by fire while on the cars of appellant, before its train left Earle.

Appellant interposed as a defense the following provision in the bill of lading:

"No carrier or party in possession of said property shah be liable for any loss thereof by causes beyond its control, or by floods, or by fire, or by riots, strikes, or stoppage of labor."

A jury was waived, and the case was tried before the court, who rendered a judgment against appellant for $ 10,999.70, from which is this appeal. The sole question involved on this appeal is the validity of the provision in the bill of lading, which exempts the carrier from liability for loss of the cotton by fire. The case was submitted upon the following agreed statement of facts raising that issue:

"On October 21, 1920, the Missouri Pacific Railroad Company received from Porter, Weaver & Company, at Earle, Arkansas, 75 bales of cotton referred to in the petition, for shipment to Liverpool, England, and on said date issued to said shippers an export bill of lading, an exact copy of which is attached and made part thereof, consigning said shipment to shipper's order, Liverpool, England; that after the execution of said bill of lading, and before said cotton had been removed by the carrier from Earle, Arkansas, and while same was on the cars of defendant, same was destroyed by a fire originating at the compress at Earle, Arkansas, and not set by defendant; that the only issue in the case is whether, in view of the execution of the bill of lading with the condition hereinafter referred to in regard to loss by fire, the carrier is liable for such loss and damage by fire; that said export bill of lading, under and pursuant to which this shipment was made, provided that the carrier should not be liable for loss of said cotton occasioned by fire; that claim for the loss in question was timely filed and defined by the carrier and suit thereafter was timely filed for said loss."

The provision in the bill of lading exempting appellant from ability on account of fire is a limitation upon appellant's common-law liability, and is void under § 843 of Crawford & Moses' Digest, if the shipment was controlled by the laws of the State.

Appellant contends that the shipment was governed by the Cummins Amendment of 1915 and 1916 to the Carmack Amendment, because the Cummins Amendment evidenced an intention on the part of Congress to occupy the field of regulating foreign commerce just as the Carmack Amendment evidenced its intention to enter the field of regulating interstate commerce. Congress has exclusive power to regulate both interstate and foreign commerce and, when it has entered upon the field of regulating either, and does regulate either the effect is that the regulatory acts of Congress upon the subject will supersede State statutes relating thereto, and all interstate and foreign shipments will be governed by Federal legislation and the common-law rules as applied in the Federal courts. C. N. O. & T. Ry. Co. v. Rankin, 241 U.S 319; So. Exp. Co. v. Byers, 240...