288 HARVARD LAW REVIEW, It is pretty firmly established that a common carrier cannot, by a simple stipulation in the bill of lading, contract away his common-law liability for loss arising from his own negligence, in the absence of an express valuation agreed upon between the shipper arfd the carrier. But the question on which the courts of this country are at variance is whether the presence of an agreed valuation will relieve the carrier from responsibility. The doctrine of Pennsylvania Co. v. Weiller obtains in twelve States and the District of Columbia; the contrary doctrine, in the Su- preme Court of the United States, and in nineteen of the States. So that though the larger number of jurisdictions are in favor of allowing the carrier to contract away his liability for negligence, yet the law cannot by any means be regarded as settled. The leading case in opposition to the Pennsylvania doctrine is Hart V. Pennsylvania R,R. Co.^ in the Supreme Court of the United States. The court agreed that a common carrier could not stipulate for exemp- tion from liability for his own negligence, but laid it down that where the shipper has agreed upon a certain valuation of his goods, and has also agreed that the carrier shall not be liable beyond this sum, it was "just to hold the shipper to his agreement, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier." ^ The grounds of the decision are that to disregard the agree- ment after loss " is to expose the carrier to a greater risk than it was in- tended he should assume. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater." The theory that the shipper is estopped to deny that the actual value of the goods is the value he himself has put upon them, is perhaps the prevailing basis of decisions in jurisdictions where the case of Hart V. Pennsylvania R.R. Co. has been followed. The grounds for the opposite conclusion are that such a stipulation is contrary to public policy, and that the old common-law rule of abso- lute liability, except for loss occurring through the act of God or the public enemies, had been sufficiently broken in upon by allowing the carrier to exempt himself from liability by special contract for loss not occurring through his own negligence. And that even though the shipper does consent to a certain valuation, he cannot thereby relieve the carrier from liability for negligence, because in so doing he is try- ing to regulate not his own but a public right. The public welfare de- mands that the common carrier shall be responsible for his own negligence and that of his servants, and consequently any agreement which attempts to interfere with this public right must be void, as con- trary to public policy. A SIMILAR decision to that reached in Pennsylvania Co. v. Weiller has been handed down very recently in the analogous case of a tele- graph company, the W. U. Tel. Co. v. Shorty in the Supreme Court of Arkansas. It was held that an agreement entered into between the sender of a telegram and the telegraph company, exempting the com- pany from liability beyond the price of the message for mistakes or delays in the transmission or delivery, unless the message is repeated, whether happening through the negligence of the company or otherwise, 1 112 U. S. 331 (1884). > Per Blatchford, J. » 14 S. W. Rep. 649 (1890).
