cept so far as they may show the reasonableness of such notices, not as contracts between the carrier and his employers limiting the common-law liability of the former, but as rules which he may adopt with the knowledge of his employer to prevent fraud and deception, and that he may know the risk which he is assuming and be paid accordingly. The carrier certainly should not be deprived of all means of thus protecting himself; and so long as the duty of disclosing the actual value and paying the compensation for its carriage, wherever it exceeds the limited value which the carrier announces that he will, unless otherwise instructed, place upon it, is cast upon the shipper only where he accepts a receipt for the goods embodying the condition, or where notice is directly given to him otherwise and he makes no objection, or where a course of dealing between himself and the carrier must have made him familiar with the requirement, no objection can be seen to it. If the carrier cannot protect him. self to this extent, great injustice might in many instances be done him. By accepting the service of carriage upon terms as to liability so directly and certainly brought to his knowledge, the shipper indicates his choice of the portion of the risk which he desires the carrier to assume and for which he is willing to pay, and his silence as to the real value must be regarded as the same thing as an assertion of the limited value which the carrier holds himself out as assuming unless otherwise informed and compensated. Besides, the purpose of the shipper in thus withholding the truth can only be supposed to be to procure the carriage for less than the adequate reward; and having for this purpose misled the carrier as to the needed care to be bestowed upon the goods, but for which the loss would have probably been avoided, the rule would seem to be unfair which would hold the latter liable for the extraordinary value.36

Sec. 441. ($255.) (§ 255.) Same subject-Notice from course of dealing. Accordingly there are cases in this country which

36. See Hart v. Railroad Co., 112 U. S. 331, where similar conclusions were reached, and the Eng.

lish cases of Gibbon v. Paynton, 4 Burr. 2298, and Batson v. Donovan, 4 B. & A. 21, were cited.

hold that where, either from a previous course of dealing between the parties or from direct notice, it was known to the shipper that the carrier received goods for transportation only upon terms that they should be considered as of a certain value, which should be the limit of his liability, unless they were valued at a higher sum and paid for accordingly, if the goods are delivered for carriage without any notice of their being of a higher value and are lost, the limit of the recovery would be the value which the carrier had fixed by his own terms.37 And if the means resorted to by carriers to protect themselves are to be tested by their justice and reasonableness, as the rule is said to be by the supreme court of the United States in The Railroad v. Lockwood,38 no objection could be well made to such rule unless we deny to the carrier all right to protect himself by a mere notice.39

Sec. 442. (§ 259.) Carrier may limit time within which claim shall be made for loss. It is frequently the custom for

37. Orange Bank v. Brown, 9 Wend. 114; Oppenheimer v. Express Co., 69 Ill. 62; Magnin v. Dinsmore, 62 N. Y. 35; Farmers' & M. Bank v. Champlain T. Co., 23 Vt. 186; Moses v. Railroad, 4 Foster, 71; 2 Greenleaf on Ev. § 215; Western T. Co. v. Newhall, 24 Ill. 466; Hopkins v. Westcott, 6

Blatch. 64; Klair v. Wilmington Steamboat Co., 4 Pennewill, (Del.) 51, 54 Atl. Rep. 694.

38. 17 Wall. 357.

39. The distinction between the notice which goes to the limitation of the liability of the carrier and that which is intended only as a protection against im position in his business is fully recognized by Cowen, J., in his opinion in Cole v. Goodwin, 19 Wend. 251. "I will only repeat," says he, "in respect to this case what seems to me perfectly obvi

ous, and which I have, if not very unsuccessful, made somewhat apparent to others, that the difference between the two cases from Burrow and East (Gibbon v. Paynton and Nicholson v. Willan) and that of Evans v. Soule (2 Maule & S. 1) is, that the notices in the former went merely to pro tect against the fraud of the bailor, and the latter to conceal and favor fraud directed against the owner and in favor of the party giving the notice. The one was for and the other against public morals; the former said merely 'give me a due reward and I will be accountable as a common carrier;' the latter, 'give me the same reward' (for the carrier fixes it; it may be less, but it may also be more), 'and yet I claim to throw all risk upon you, or such a degree of it as I please.'

the carrier to insert in the contract of shipment a condition that, in the event of loss, the owner shall give notice of his claim within a specified time. Such conditions are usually to the effect that the notice shall be in writing and presented to some officer or agent of the carrier, either before the goods are removed from the point of destination or within a certain time thereafter, or within a designated time after the loss has occurred; and when such conditions are reasonable, the owner will be precluded from the right to maintain an action against the carrier unless he has presented the notice within the time stated and in the manner provided.40 The object of conditions

In the former, the plaintiff sought to commit and did commit actual frauds after express notice that he must be honest. He sought in that way to deprive the laborer of a reasonable reward for his hire. In the latter, he was paid all he demanded and yet he refuses to carry under the obligation re quired by law."

the removal of the goods, will be construed as meaning the removal from the place of deposit of the goods upon the dock or wharf when freed from the ship's tackle, and, as thus construed will be reasonable and valid. The St. Hubert, 107 Fed. 727, 46 C. C. A. 603, affirming 102 Fed. 362.

A stipulation limiting the time

40. England: Lewis v. Railway within which suit shall be filed Co., 5 H. & N. 867.

United States: Express Co. v. Caldwell, 21 Wall. 264; The Queen of the Pacific, 180 U. S. 49, 45 L. Ed. 419, 21 Sup. Ct. R. 278, reversing Pacific Coast S. S. Co. v. Bancroft Whitney Co., 94 Fed. 180, 36 C. C. A. 135, and 78 Fed. 155; Angel . Steamship Co., 55 Fed. 1005; Central, etc. R. Co. v. Soper, 59 Fed. 879, 8 C. C. A. 341, 21 U. S. App. 24; Ginn v. Ogdensburg Transit Co., 85 Fed. 985, 29 C. C. A. 521; Metropolitan Trust Co. v. Railroad Co., 107 Fed. 628; The Artic Bird, 109 Fed. 167; The Westminster, 127 Fed. 680, 62 C. C. A. 406, affirming 116 Fed. 123.

A provision that the shipowner is not to be liable for any claim, notice of which is not given before

applies as well to a suit in rem against the vessel carrying the property as to an action in personam against the owner. The shipper cannot avoid the operation of such a stipulation by simply changing his form of action from one in personam to one in The Queen of the Pacific, supra; The St. Hubert, supra. Alabama: Railroad Co. v. Sanders, 135 Ala. 504, 33 So. Rep. 482.

rem.

Arkansas: Railroad Co. t'. Hurst, 67 Ark. 407, 55 S. W. Rep. 215. Under a provision requiring notice of claim before the removal of live stock and within one day after delivery, it was held that since the provision was inserted for the benefit of the carrier to give him an opportunity to exam

of this character, it is said, is to enable the carrier, while the occurrence is recent, to better inform himself of what the actual facts occasioning the loss or injury were, and thus protect himself against claims which might be made upon him after such a lapse of time as to frequently make it difficult, if not impossible, for him to ascertain their truth. It is just, therefore, that

the owner, when a loss or injury has occurred, should be required, as a condition precedent to enforcing the carrier's lia