tract for the entire transportation, but merely an agreement to carry to the end of its own line and there deliver to the succeeding carrier, the contracting carrier is understood to provide only for himself, and those who succeed him take the goods as though no contract whatever had been made. The connecting carrier in such a case is not only a stranger to the contract but to its consideration. There can be no presumption that there has been on his part any abatement of his charges, as a consideration for exemption from liability on the part of the owner of the goods; and there being no express contract with him the law will not imply one for his benefit.8 Sec. 472. (§ 273.) Same subject-Limitation inures to benefit of connecting carrier only when contract for through carriage exists.—The reasons upon which these decisions are based are obvious. When the carrier has undertaken to convey only to the end of his own route, and there to deliver to the succeeding carrier for further carriage, he is a carrier only for his own route, and a forwarder only by the next succeeding carrier, as agent for the owner of the goods. He has no interest in the further transportation, and any contract as to liability which he may have made is to be understood as only co-extensive with his obligation, unless expressly stipulated otherwise. The succeeding carriers are in no wise his agents, but carry for the owner of the goods, and cannot claim the benefit of immunities for which he contracted.9 But when he undertakes for the conveyance to destination, his responsibility continues throughout the transit. The succeeding carriers are but his agents, and as such are entitled for their protection to the benefit of all contracts made with their principal. Hence it follows that whenever the carrier is bound by his 8. Merchants' D. T. Co. v. Bolles, 80 Ill. 473; Manhattan Oil Co. v. Railroad, 54 N. Y. 197; Etna Ins. Co. t. Wheeler, 49 N. Y. 616; Bancroft v. Transportation Co., 47 Iowa, 262. sections, 470, 471. See also, Western, etc. R. Co. v. Cotton Mills, 81 Ga, 522; Robinson v. Steamship. Co., 71 N. Y. Supp. .424, 63 App. Div. 211; s. c. affirmed without opinion, 177 N. Y. 565, 69 N. 9. See cases cited in preceding E. Rep. 1130. contract or by law to carry the goods to the place of their consignment, all carriers who engage in the transportation for any portion of the route are entitled to all the protection which the first carrier has secured by his contract with the shipper.10 Whenever, therefore, as in England and in many of the states of this country, upon the delivery of goods to a common carrier, consigned to a particular point, the law obliges him to become responsible for the carriage to that place, all subsequent carriers who may be employed to aid in the through transportation do so as agents of the carrier to whom they are first delivered, and are protected by his contracts.11 By the English law, as we have seen, the question could never arise, because the right of action in such cases would be confined to the first company.12 Sec. 473. (§ 274.) Same subject.-The American courts, as we have seen, have not confined the right of action to the carrier upon whom rests the responsibility of the entire transportation where more lines than one have to be traversed by the goods to reach destination, whether that responsibility arises by contract or is forced upon him by construction of law; so that even those 415, an express company delivered a receipt to a shipper which contained a stipulation exempting itself from liability except for fraud or gross negligence. It was further provided that such stipulation should inure to the benefit of any connecting carrier. A connecting carrier, in receiving the goods, made out a new and different contract from that contained in the first carrier's receipt. It was held that by so doing it could no longer claim the benefit of the stipulation in the first contract. 10. See cases cited in §§ 470, 471. See also, Adams Ex. Co. v. Harris, 120 Ind. 73; Taylor v. Railroad Co., 39 Ark. 148; Whitworth v. Railway Co., 87 N. Y. 414; Kiff v. Railroad Co., 32 Kan. 263; Bird v. The Railway, 99 Tenn. 719, 42 S. W. Rep. 451, 63 Am. St. Rep. 856, citing Hutchinson on Carr.; White v. Weir, 53 N. Y. Supp. 465, 33 App. Div. 145; Railway Co. v. Viers, 24 Ky. Law Rep. 356, 68 S. W. Rep. 469; Mears v. The Railroad, 75 Conn. 171, 52 Atl. Rep. 610, 96 Am. St. Rep. 192, 56 L. R. A. 884; Railroad Co. v. Bridger, 94 Ga. 471, 20 S. E. Rep. 349; Railway Co. v. Sales (Canada), 26 S. C. R. 663. In Browning v. Transportation Co., 78 Wis. 391, 47 N. W. Rep. 428, 23 Am. St. Rep. 414, 10 L. R. A. 11. Ante, § 225. 12. Wilby v. Railway Co., 2 Hurl. & N. 703; Mytton v. Railway Co., 4 id. 615; The Directors, etc. v. Collins, 7 H. L. Cas. 194; Coxon v. Railway, H. & N. 274. courts which have adopted the English rule13 permit actions to be brought against any of the connecting carriers upon whose lines the loss or damage may have occurred; but there can be no doubt but that, in such cases, the carrier who is sued is entitled to every advantage from the contract for the carriage which the contracting carrier could himself derive from it. Sec. 474. (§ 277c.) By what law contract is to be construed. The question, by what law the contract is to be construed, is an interesting and important one, but as the whole matter has been considered in previous sections, the question will not be reviewed here.14 Sec. 475. (§ 278.) The consideration necessary to uphold such contracts.-But, like all contracts, in order to be binding upon those who enter into them, those which are entered into by the carrier and his employers must be upheld by some consideration.15 So far as the carrier is concerned, the consideration consists in the diminution of the risk which he assumes. But the consideration derived from the agreement by the owner of the goods is not always so apparent. As the common carrier is bound to carry without any contract limiting his liability, and may be compelled to do so when his compensation is tendered, his mere agreement to carry does not furnish a consideration for the agreement to limit his liability, and if his rate of compensation were so fixed by law that he could charge neither more nor less than a given amount for the service which is required 13. Ante, § 236. 14. See ante, §§ 199-224. 15. Rosenfield v. The Railway, 103 Ind. 121, 2 N. E. Rep. 344; Railroad Co. v. Holland, 162 Ind. 406, 69 N. E. Rep. 138, 63 L. R. A. 948; McFadden v. The Railway, 92 Mo. 343, 4 S. W. Rep. 689, 1 Am. St. Rep. 721; Wehmann v. The Railway, 58 Minn. 22, 59 N. W. Rep. 546; Southard V. The Railway, 60 Minn. 382, 62 N. W. Rep. 442, 619; German, etc. Co. v. The Railway, 38 Iowa, 127; of him, it would be difficult to find in the contract to carry for the legal rate any consideration which could make such contract obligatory upon his employer. But such is not the case, and the compensation for the service of the carrier is always subject to the agreement of the parties. The law, therefore, will presume that in fixing the amount of compensation which he is to receive, something has been allowed to his employer in the way of reduced rate as the consideration to him for agreeing to a reduced responsibility on the part of the carrier; and where it is claimed that no such reduced rate was in fact allowed him, it will require clear and satisfactory evidence to rebut the presumption that the diminished responsibility was assumed in consideration of a reduced rate.16 It is held by some courts,17 however, that the mere fact that the contract to carry contains a limitation upon the carrier's common law liability will give rise to no presumption that the limitation was based upon a reduced rate of compensation, and that, unless it can be shown that the rate charged was less than the usual rate for shipments under the common law liability, the limitation will be without a consideration to support it and will not be obligatory upon the sender of the goods. But while an agreement that the carrier shall assume a diminished responsibility will ordinarily give rise to a presumption that some concession in the way of a reduced rate has been allowed to his employer, if it is shown that the rate charged by the carrier was the usual and customary rate for similar kinds of shipments made subject to his full common 16. Schaller v. The Railway, 97 Wis. 31, 71 N. W. Rep. 1042; Stewart v. The Railway, 21 Ind. App. 218, 52 N. E. Rep. 89; Wehmann v. The Railway, 58 Minn. 22, 59 N. W. Rep. 546; York Co. v. Railroad Co., 3 Wall. 107; Cau v. Railroad Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053; s. c. 113 Fed. 91, 51 C. C. A. 76; Arthur v. Railway Co., 139 Fed. 127, C. C. A. 17. Kellerman v. Railroad Co., 136 Mo. 177, 34 S. W. Rep. 41, Mo. App. —, 87 S. W. Rep. 553; law liability, and that no concession of any sort was in fact allowed, the limitation will rest upon no consideration and will not relieve the carrier.18 And although it may be recited in the contract of shipment that the rate charged is less than the usual tariff rate, such a recital is not conclusive and may be explained or contradicted by other evidence tending to show that the rate charged was the usual tariff rate.19 But where the contract was for an interstate shipment, and abatement of rates was prohibited by an act of congress, it was held that, the contract being silent on the subject, a rebate would not be presumed, and that the full common law liability attached irrespective of the limitations contained in the contract.20 Sec. 476. (§ 279.) Contract must have a fair construction. -The intent of the parties to such contracts is, of course, as in all other cases, to be gathered from the whole instrument. But 18. Richardson v. Railway Co., 149 Mo. 311, 50 S. W. Rep. 782, 13 Am. & Eng. R. Cas. (N. S.) 170; McFadden v. Railway Co., 92 Mo. 343, 4 S. W. Rep. 689; Ficklin & Son v. Railroad Co., Mo. App. 92 S. W. Rep. 347; Summers v. Railroad Co., Mo. App. 79 S. W. Rep. 481; Kellerman v. Railroad Co., 136 Mo. 177, 34 S. W. Rep. 41, 37 S. W. Rep. 828; Ficklin v. Wabash R. Co., Mo. App. 93 S. W. Rep. 847. Where the rate charged is that established by law, and only that rate is offered to the shipper, a special provision limiting the carrier's liability is void. Railroad Co. v. Insurance Co., 79 Miss. 114, 30 So. Rep. 43. But see Nelson v. Railroad Co., 4S N. Y. 498; Rubens v. Ludgate Hill S. S. Co., 65 Hun, 625, 20 N. Y. Supp. 481. 19. The reduction in charge in order to support a contract for a 75 N. E. Rep. 867. 20. Wehmann r. Railway Co., 58 Minn. 22, 59 N. W. Rep. 546. |