a few cases 56 it has been held that such a provision though generally valid would not be enforced where the plaintiff was not aware of the company's negligence until after the stipulated time had elapsed, and if the plaintiff's failure to discover the facts was not culpable. These decisions may be supported as a relief from a penal effect of the provision; but a few decisions have extended the stipulation by construction so as to permit lapse of the stipulated number of days from the plaintiff's acquisition of knowledge of the facts.57 Such a construction imposes too violent a strain on the language, and there are contrary and better decisions 58 denying any extension of the plaintiff's right where there still remained, after discovery of the right of action, ample time to make a claim within the stipulated sixty days. § 1115. Legislation regarding bills of lading. An attempt has been made to codify the law governing bills of lading. The primary object of those seeking to bring this about was to procure uniformity in regard to the negotiability of order bills of lading a matter in regard to which mercantile custom and the custom law were in conflict. The decisions of some States, adopting to a greater or less degree 227, 22 N. W. 385; Hartzog v. Western Union Tel. Co., 84 Miss. 448, 36 So. 539, 105 Am. St. Rep. 459; Thorp v. Western Union Tel. Co., 118 Mo. App. 398, 94 S. W. 554; Young v. Western Union Tel. Co., 65 N. Y. 163; Sykes v. Western Union Tel. Co., 150 N. C. 431, 64 S. E. 177; Wolf v. Western Union Tel. Co., 62 Pa. St. 83, 1 Am. Rep. 387 (cf. Conrad v. Western Union Tel. Co., 162 Pa. 204, 29 Atl. 888.); Smith v. Western Union Tel. Co., 77 S. C. 378, 58 S. E. 6; Kirby v. Western Union Tel. Co., 4 S. D. 105, 55 N. W. 759, 7 S. D. 623, 65 N. W. 37, 30 L. R. A. 612, 621, 624, 46 Am. St. Rep. 765, Western Union Tel. Co. v. Greer, 115 Tenn. 368, 89 S. W. 327, 1 L. R. A. (N. S.) 525; Phillips v. Western Union Tel. Co., 95 Tex. 638, 69 S. W. 63; Brooks v. Western Union Tel. Co. 26 Utah, 147, 72 Pac. 499; Heimann v. Western Union Tel. Co., 57 Wis. 562, 16 N. W. 32. 56 In Sherrill v. Western Union Tel. Co., 109 N. C. 527, 14 S. E. 94, and Conrad v. Western Union Tel. Co., 162 Pa. 204, 29 Atl. 888. See also Johnson v. Western Union Tel. Co., 33 Fed. 362. 57 Postal Telegraph Cable Co. v. Nichols, 159 Fed. 643, 89 C. C. A. 585, 16 L. R. A. (N. S.) 870; Sherrill v. Western Union Tel. Co. 109 N. C. 527, 14 S. E. 94. 58 Stone v. Postal-Telegraph Co., 31 R. I. 174, 76 Atl. 762, 29 L. R. A. (N. S.) 795, 35 R. I. 498, 87 Atl. 319, 46 L. R. A. (N. S.) 180; Heimann v. Western Union Tel. Co., 57 Wis. 562, 16 N. W. 32. mercantile custom, treated order bills of lading (those in which the carrier agrees to deliver goods to the order of the consignee) as negotiable. Other courts refused to do this. The importance of negotiability it should be observed relates not only to the ownership of the goods of which the bill of lading is a symbol, but to the contractual obligations of the carrier; since the carrier may become liable to the holder of the bill not only as owner of the goods but also as entitled to enforce the promissory undertaking of the bill of lading, if it is negotiable. With these matters in mind, the Commissioners for Uniform State Laws recommended in 1909 a uniform codification of the law governing bills of lading, and this statute has been enacted in a number of States.59 § 1116. Federal legislation on bills of lading. It became evident from the decisions of the Supreme Court of the United States after the passage of the Carmack Amendment in 1906,60 that the subject of bills of lading for the interstate transportation of goods was one of which the federal government had assumed the regulation, and that the validity and effect of such documents must be determined by Federal law.61 Whether this principle invalidates not only 59 It has been enacted in Alaska, Connecticut, Idaho, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin. 60 See supra, § 1073. 61 In Atchison, etc., Ry. v. Harold, 241 U. S. 371, 36 Sup. Ct. 665, 60 L. Ed. 1050, a carrier had issued a bill of lading before goods had actually come into its hands, in exchange for another bill of lading which had been issued by a connecting carrier. The second bill of lading was sold to the plaintiff who sued the railroad for failure to deliver the goods within a reasonable time after the date on which the bill of lading stated that the goods had been received. The Kansas court allowed recovery, holding the railroad estopped in a suit by an innocent purchaser to deny that it had received the goods on the day stated in its bills of lading. The United States Supreme Court reversed the decision holding that under federal law the purchaser of the bill acquired no greater rights than the shipper who originally received it from the railroad and who, of course, had knowledge of the facts. The court said: "Whether in the absence of legislation by Congress the attributing to an interstate bill of lading of the exceptional and local characteristic applied by the court below in conflict with the general commercial rule constituted a direct burden on interstate commerce and state regulation of the contractual obligations of the carrier, but also such regulation of the effect of a bill of lading as a transfer of the title to goods behind it under a contract between buyer and seller, neither of whom perhaps was a party to the original contract of shipment, remains the only question of difficulty.62 But as no change in title to the goods while in transit can be effected without a change at least in the person to whom the carrier's obligation is owing, it seems probable that an interstate bill of lading is under the control of the federal government even regarding its effect as a symbol of title. Accordingly an effort which was finally successwas therefore void, need not now be considered. This is SO because irrespective of that question, and indeed without stopping to consider the general provision of the Act to Regulate Commerce it is not disputable that what is known as the Carmack Amendment to the Act to Regulate Commerce (act of June 29, 1906, c. 3591, §7, 34 Stat. 593) was an assertion of the power of Congress over the subject of interstate shipments, the duty to issue bills of lading and the responsibilities thereunder, which in the nature of things excluded state action. Adams Express Co. v. Croninger, 226 U. S. 491, 505-506, 33 Sup. Ct. 148, 57 L. Ed. 314; Missouri, etc., Ry. Co. v. Harriman, 227 U. S. 657, 671-672, 57 L. Ed. 690; Boston & Maine R. R. v. Hooker, 233 U. S. 97, 110, 34 Sup. Ct. 526, 58 L. Ed. 868, 1915 B. L. R. A. 450, Ann. Cas. 1915 D. 593; Atchison, Topeka & Santa Fe Ry. v. Robinson, 233 U. S. 173, 180, 34 Sup. Ct. 556, 58 L. Ed. 90; Cleveland & St. Louis Ry. v. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 177, 60 L. Ed. 453; Georgia, F. & A. Ry. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948. state commerce under a bill of lading is embraced by the Carmack Amendment, state legislation on that subject has been excluded. It is insisted, however, that this does not exclude liability for error in the bill of lading purporting to cover an interstate shipment because 'Congress has legislated relative to the one, but not relative to the other.' But this ignores the view expressly pointed out in the previous decisions dealing with the Carmack Amendment that its prime object was to bring about a uniform rule of responsibility as to interstate commerce and interstate commerce bills of landing, a purpose which would be wholly frustrated if the proposition relied upon were upheld." In United States v. Ferger, 250 U. S. 199, 207, 39, S. Ct. 445, 447, it was held that Congress had jurisdiction to enact criminal penalties for the forgery of bills of lading (see infra, § 1131) though, since the bills were based on no actual shipment, interstate commerce was involved only because of the general desirability of protecting bills of lading as instruments of commerce. 62 In Roland M. Baker Co. v. Brown, 214 Mass. 196, 100 N. E. 1025, it was held that the purchaser in Massachusetts of a foreign bill of lading acquired the rights given by the Massachusetts statute. ful was made to secure the enactment of a Federal law substantially identical with the uniform state law except that it was limited to interstate commerce. This Act, called the Pomerene Act, was enacted in 1916. It has no application to bills of lading originating abroad. In regard to such bills and in regard to intrastate bills, local statutes and the common law are controlling. 1117. The Pomerene Act. As the Pomerene Act codifies the main principles governing bills of lading, it is here inserted. It differs in some particulars from the Uniform State law, and attention is called in the notes to these differences. The sections of the statutes imposing criminal penalties are not here inserted. The opening section defines the scope of the Act. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That bills of lading issued by any common carrier for the transportation of goods in any Territory of the United States, or the District of Columbia, or from a place in a State to a place in a foreign country, or from a place in one State to a place in another State, or from a place in one State to a place in the same State through another State or foreign country, shall be governed by this Act.63 § 1118. Kinds of bills of lading which may be issued. Section 2. [STRAIGHT BILL DEFINED.] That a bill in which it is stated that the goods are consigned or destined to a specified person is a straight bill. Section 3. [ORDER BILL DEFINED.] That a bill in which it is stated that the goods are consigned or destined to the order of any person named in such bill is an order bill. Any provision in such a bill or in any notice, contract, rule, regula 63 The Uniform State bill purports to cover all bills of lading issued by common carriers, and has been held to control the effect of a negotiation in Massachusetts of a bill originating in a foreign country. Roland M. Baker Co. v. Brown, 214 Mass. 196, 100 N. E. 1025. But it seems that the Federal Statute must have exclusive effect on all bills of lading within its terms. Atchison &c. R. v. Harold, 241 U. S. 371, 60 L. Ed. 1050, 36 Sup. Ct. Rep. 665. tion, or tariff that it is non-negotiable shall be null and void and shall not affect its negotiability within the meaning of this Act unless upon its face and in writing agreed to by the shipper.6 64 Section 4. [SETS OF ORDER BILLS PROHIBITED IN INTERSTATE SHIPMENTS.] That order bills issued in a State for the transportation of goods to any place in the United States on the Continent of North America, except Alaska and Panama, shall not be issued in parts or sets. If so issued, the carrier issuing them shall be liable for failure to deliver the goods described therein to anyone who purchases a part for value in good faith, even though the purchase be after the delivery of the goods by the carrier to a holder of one of the other parts: Provided, however, That nothing contained in this section shall be interpreted or construed to forbid the issuing of order bills in parts or sets for such transportation of goods to Alaska, Panama, Porto Rico, the Philippines, Hawaii, or foreign countries, or to impose the liabilities set forth in this section for so doing.65 Section 5.-[DUPLICATE ORDER BILL MUST BE SO MARKED.] That when more than one order bill is issued in a State for the same goods to be transported to any place in the United States on the Continent of North America, except Alaska and Panama, the word "duplicate," or some other word or words indicating that the document is not an original bill, shall be placed plainly upon the face of every such bill except the one first issued. A carrier shall be liable for the damage caused by his failure so to do to anyone who has purchased the bill for value in good faith as an original, even though the purchase be after the delivery of the goods by the carrier to the holder of the original bill: Provided, however, That nothing contained in this section shall in such case for such transportation of goods to Alaska, Panama, Porto Rico, the Philippines, Hawaii, or foreign countries be interpreted or construed so as to require the placing of the word “duplicate thereon, or to impose the liabilities set forth in this section for failure so to do.66 64 See Williston on Sales, §§ 411, 412. 65 See Williston on Sales, § 441. 99 |