Baltimore & Ohio Railroad Company v. Leach/Dissent Clarke
Mr. Justice CLARKE dissenting.

In this case the shipper sued two connecting interstate carriers for damages to a carload of cattle, caused by delay in transit. Three died in the car and four more within three or four days of arrival at destination and the defense sustained by the court is failure to notify the carrier of claim for damages within five days of unloading.

The carrier pleaded that one of the terms of the bill of lading was the five-day limitation, quoted in the opinion of the court. This was immediately preceded, in the same paragraph, by the following:

'That in the event of any unusual delay or detention of said      live stock, caused by the negligence of the said carrier, or      its employes, or its connecting carriers, or their employes,      or otherwise, the said shipper agrees to accept as full      compensation for all loss or damage sustained thereby the      amount actually expended by said shipper in the purchase of      food and water for said live stock, while so detained.'

In Boston & Maine Railroad v. Piper, 246 U.S. 439, 38 Sup. Ct. 354, 62 L. Ed. 820, Ann. Cas. 1918E, 469, a provision in exactly these terms was held 'illegal and consequently void,' as an attempt by the carrier to exoperate itself from loss negligently caused by it. This is the only provision in the bill of lading, as pleaded, which is applicable to a claim for delay, such as the shipper made in this case, and since it is void there is nothing in the contract for carriage on which the five-day limitation could operate, for it applied in terms only to claims 'for damages which may accrue to said shipper under this contract.'

The suit of the shipper was based on the common-law liability of the carrier, not at all on the bill of lading; the five-day limitation is in terms applicable only to claims under the bill of lading; the only provision in the bill of lading applicable to claims for delay was void, and therefore it seems very clear that the five-day limitation was not available as a defense.

Permit me to add that the many cases coming into this and other courts show that this five-day limitation is unreasonably short and in my judgment, for this reason, it should be declared void upon its face. Certainly it should not be made a favorite of the law and extended beyond its strict terms, in presence of the Act of Congress approved March 4, 1915 (38 Stat. 1196, c. 176), declaring that where in such suit the damage complained of is due to delay or damage in transit by carelessness or negligence, 'then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.' While the case before us arose prior to the passing of this act, it is an important declaration of public policy by Congress, which should not be overlooked.

For the reasons thus briefly stated, I cannot concur in the opinion of the court.

Mr. Justice McKENNA also dissents. 

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