The opinion in Grace v. Adams,1 contains this clear statement of the justification for this doctrine: "The acceptance of it (a bill of lading) by the plaintiff, at the time of the delivery of his package,' without notice of his dissent from its terms, authorized the defendants to infer assent by the plaintiff. It was his only voucher and evidence against the defendants. It is not claimed that he did not know, when he took it, that it was a shipping contract or bill of lading. It was his duty to read it. The law presumes, in the absence of fraud or imposition, that he did read it, or was otherwise informed of its contents and was willing to assent to its terms without reading it. Any other rule would fail to conform to the experience of all men.”

§ 1004. Such acceptance not conclusive.

Although the acceptance of the instrument is generally held to be at least prima facie evidence of an agreement to its stipulations,3 there are many jurisdictions where the stipulations contained in a bill of lading, for example

New York.-Wilson v. Platt, 84 N. Y. Supp. 143 (1903).

V.

South Carolina.-Dunbar Charleston & W. C. Ry. Co., 62 S. C. 414, 40 S. E. 884 (1902).

1 100 Mass. 505, 97 Am. Dec. 117 (1868).

2 Note, however, that where the instrument is issued after the shipment is made without any previous understanding it cannot affect the common law relationship already established.

Illinois.-Merchant's Dispatch Transp. Co. v. Furthmann, 149 III. 66, 36 N. E. 624, 41 Am. St. Rep. 265 (1893).

Indiana.-Louisville, N., A. & C. Ry. Co. v. Craycraft, 12 Ind. App. 203, 39 N. E. 523 (1894).

Massachusetts.-Gott V. Dinsmore, 111 Mass. 45 (1872).

Wisconsin.-Strohn v. Detroit & M. Ry. Co., 21 Wis. 554, 94 Am. Dec. 554 (1867).

Indiana.-Louisville, N., A. & C. Ry. Co. v. Craycraft, 12 Ind. App. 203, 39 N. E. 523 (1894).

Tennessee.-Dillard Bros. v. Louisville & N. R. R. Co., 2 Lea, 288 (1879).

Texas.-Missouri, K. & T. Ry. Co. v. Carter, 9 Tex. Civ. App. 677 (1895).

Wisconsin.-Boorman v. American Express Co., 21 Wis. 152 (1866).

United States.-Railroad Co. v. Manufacturing Co., 16 Wall. 318, 21 L. ed. 297 (1872).

are held not to be made part of the contract by the mere acceptance of the instrument. These jurisdictions require that something more shall be shown in evidence of mutual assent than the mere fact of the issue of the instrument in question. And, indeed, the real question in every case is whether the document received is of such a character that under the circumstances, by the general understanding of the community, the receipt of the document is an assent to its terms. It is often insisted that provisos on tickets and passes do not necessarily govern,' but there is more law to the contrary. The conservative view indicated in the footnotes to this section does not generally prevail as to such significant instruments as bills of lading and passenger tickets, as reference to the citations in this and the preceding paragraph will show.

Alabama.-Southern Express Co. v. Armstead, 50 Ala. 350 (1873). Dakota.-Hartwell v. Northern Pacific Exp. Co., 5 Dak. 463, 41 N. W. 732, 3 L. R. A. 342 (1889).

Georgia.-Central R. R. Co. v. Dwight Mfg. Co., 75 Ga. 609 (1885).

Illinois.-Anchor Line v. Dater, 68 Ill. 369 (1873).

Mississippi.-Mobile & O. R. R. Co. v. Weiner, 49 Miss. 725 (1874). New York.-Blossom v. Dodd, 43 N. Y. 264 (1870).

Ohio.-Gaines v. Union Transp. & Ins. Co., 28 Ohio St. 418 (1876). Oregon. Seller v. Steamship Pacific, 1 Oreg. 409 (1861).

1 United States.-The Majestic, 166 U. S. 375, 17 Sup. Ct. 597, 41 L. ed. 1039 (1897).

Delaware.--Flinn v. Philadelphia, W. & B. R. R. Co., 1 Houston, 469 (1858).

Kansas.-Kansas City, St. J. & C. B. R. R. Co. v. Rodebaugh, 38 Kan. 45, 15 Pac. 899 (1887).

New York.-Lechowitzer v. Hamburg-American Packet Co., 27 N. Y. Supp. 140, 57 N. Y. St. Rep. 862 (1894).

V.

V.

South Carolina.-Norman Southern Ry. Co., 65 S. C. 517, 44 S. E. 83, 95 Am. St. Rep. 809 (1903). 2 United States.-Boering Chesapeake Beach Ry. Co., 193 U. S. 442, 48 L. ed. 742, 24 Sup. Ct. 515 (1904).

Maryland.-Johnson v. Philadelphia, W. & B. R. R. Co., 63 Md. 106 (1884).

Massachusetts.-Quimby v. Boston & Maine R. R. Co., 150 Mass. 365, 23 N. E. 205, 5 L. R. A. 846 (1890).

Utah.-Drummond v. Southern Pacific Co., 7 Utah, 118, 25 Pac. Rep. 733 (1891).

§ 1005. Where consideration is found.

Inasmuch as by law the person engaged in a public service is bound, upon the tender of a reasonable charge, or rather of the established rate, to serve anyone to the extent of the service professed, the mere undertaking of the performance of what it is one's duty to perform would not seem to be a consideration sufficient to support the contract for limitation of liability. Where there is a reduced rate, that is, a rate lower than what would be reasonable or what has been fixed for the performance of the service under full common law liability, a proper consideration for the contract for limitation of liability may be found.1 And to render this reduced rate really a consideration, it would seem that a fair option of shipping the goods at the higher rate upon common law liability must have been afforded the shipper.

V. Louis

1 Alabama.-Mouton ville & N. R. R. Co., 128 Ala. 537, 29 So. 602 (1900).

Connecticut.-Mears v. New York, N. H. & H. R. R. Co., 75 Conn. 171, 52 Atl. 610, 56 L. R. A. 884, 96 Am. St. Rep. 192 (1902).

Indiana.-Adams Express Co. v. Harris, 120 Ind. 73, 21 N. E. 340, 7 L. R. A. 214 (1889).

Kentucky.-Baughman v. Louisville, E. & St. L. Ry. Co., 94 Ky. 150, 21 S. W. 757 (1893).

Minnesota.-Wehmann v. Minneapolis, St. P. &. S. S. M. Ry. Co., 58 Minn. 22, 59 N. W. 546 (1894).

Missouri.-Richardson v. Chicago & A. Ry. Co., 149 Mo. 311, 50 S. W. 782 (1899).

Tennessee.-Railroad Co. v. Gilbert, Parkes & Co., 88 Tenn. 430, 12 S. W. 1018 (1889). Texas.-Texas & P. Ry. Co. v.

However, where the agree

Klepper (Tex. Civ. App.), 24 S. W. 567 (1893).

Wisconsin.-Ulman v. Chicago & N. W. Ry. Co., 112 Wis. 150, 88 N. W. 41, 56 L. R. A. 246, 88 Am. St. Rep. 949 (1901).

Ireland.-Gallagher v. Gt. Western Ry. Co., I. R. 8 C. L. 326 (1874). 2 Arkansas.-Pacific Express Co. v. Wallace, 60 Ark. 100, 29 S. W. 32 (1895).

Indiana.-Pittsburg, C., C. & St. L. Ry. Co. v. Mitchell, 000 Ind. 000, 91 N. E. 735 (1910).

Kansas.—Atchison, T. & S. F. R. Co. v. Dill, 48 Kan. 210, 29 Pac. 148 (1892).

Missouri.-Phoenix Powder Mfg. Co. v. Wabash Ry. Co., 101 Mo. App. 442, 74 S. W. 492 (1903); Bowrin v. Wabash Ry. Co., 90 Mo. App. 324 (1901).

ment relates to the performance of services which the carrier as a public servant was not bound to render,1 or has some other legal consideration in it, this objection cannot be raised.

2

§ 1006. Certain authorities more easily satisfied.

However, the view has been advanced that the limitation of liability agreed upon will be valid, even if the alternative is not presented of shipping under the common law at a higher rate. This view was recently adopted apparently by the Supreme Court of the United States. in a recent decision 3 where Mr. Justice McKenna said: "If it means that the alternative must be actually presented to the shipper by the carrier, we cannot agree. From the standpoint of the law the relation between carrier and shipper is simple. Primarily the carrier's responsibility is that expressed in the common law, and the shipper may insist upon the responsibility. But he may consent to a limitation of it, and this is the 'option and opportunity' which is offered to him. What other can be necessary?" It is believed that this case is distinguishable; if not, it is submitted that it is not likely to make

Southern Ry. Co., 127 N. C. 293, 37 S. E. 328 (1900).

Tennessee.-Nashville, C. & St. L. Ry. Co. v. Stone & H., 112 Tenn. 348, 79 S. W. 1031 (1904).

Teras.-Texas & P. Ry. Co. v. Avery, 19 Tex. Civ. App. 235, 46 S. W. 897 (1898).

1 See Gardner v. Southern Ry. Co., 127 S. C. 293, 37 S. E. 329 (1900).

* See Wehmann v. Minneapolis, St. P. & S. S. M. Ry. Co., 58 Minn. 22, 59 N. W. 546 (1894).

'Cau v. Texas & P. R. R. Co.,

194 U. S. 427, 24 S. Ct. 663, 48 L. ed. 1053 (1904).

If the shipper asks for the "lowest rate" and a limited liability contract is tendered to him, which he accepts, he cannot avoid the limitation of liability upon the ground that he requested a rate for service under common law liability and that such rate was refused. Jennings v. Grand Trunk Ry. Co., 52 Hun, 227 (1889).

"The circumstances showing want of consideration must be specially pleaded. Gulf, C. & S. F. Ry. Co.

law, in view of the fact that it stands alone in its opposition to the whole theory of the common law on this subject.

Topic B. Limitation of Exceptional Liability as Insurer § 1007. Such limitation not inconsistent with public duty. The most important point in relation to the limitation of liability is that the exceptional liability, such as that making the common carrier of goods liable as an insurer, may be done away with by a special contract properly made. By the overwhelming weight of authority, it