A common carrier may not limit his legal liability by any notice given either by publication or by entry on receipts given or tickets sold, provided that a common carrier may limit his liability by means of an express contract; provided, however, that a motor common carrier of household goods and office furnishings may require a shipper to declare a lump sum value for the shipment prior to loading or accept the per pound released value as provided in the terms of the bill of lading contract for the purpose of limiting its liability.
(Orig. Code 1863, § 2041; Code 1868, § 2042; Code 1873, § 2068; Code 1882, § 2068; Civil Code 1895, § 2276; Civil Code 1910, § 2726; Code 1933, § 18-104; Ga. L. 1984, p. 693, § 1.)
Cross references.- Limitation of carrier's liability by express provision in document of title, § 11-7-309.
Unenforceability of indemnification contracts holding indemnitee harmless from liability for its own negligence, § 13-8-2(b).
JUDICIAL DECISIONS
Section not applicable to carrier of passengers.
- A carrier of passengers cannot limit the carrier's obligation to exercise extraordinary diligence for the care of the carrier's passengers by a notice or publication, nor can the carrier do so even by an express contract, because such a contract would be void, as being against public policy. Central of Ga. Ry. v. Lippman, 110 Ga. 665, 36 S.E. 202, 50 L.R.A. 673 (1900); Southern Ry. v. Watson, 110 Ga. 681, 36 S.E. 209 (1900); Hearn v. Central of Ga. Ry., 22 Ga. App. 1, 95 S.E. 368 (1918).
Limitation of liability by carrier in general.
- Carrier in proper case may limit its liability. Brown-Rogers-Dixson Co. v. Southern Ry., 79 Ga. App. 449, 53 S.E.2d 702 (1949).
Special contract limiting liability enforced if reasonable.
- A special contract between a railroad company and the shipper as to the liability of the company for the loss of goods shipped will, if legal and reasonable, be enforced. Brown-Rogers-Dixson Co. v. Southern Ry., 79 Ga. App. 449, 53 S.E.2d 702 (1949).
Parties governed by terms of express contract where one exists.
- When a common carrier makes an express contract, the contract is the rule by which the parties are governed, and not the general law as to the liability of common carriers, and the intent of the parties to the contract is to measure their rights and liabilities, and not the law which governs common carriers. Central R.R. v. Bryant, 73 Ga. 722 (1884).
Liability under contract only in event of gross negligence.
- A carrier may by special contract so limit its liability for loss or damage that it will be liable only in the event that it is guilty of gross negligence. Central of Ga. Ry. v. Hall, 124 Ga. 322, 52 S.E. 679, 110 Am. St. R. 170, 4 L.R.A. (n.s.) 898, 4 Ann. Cas. 128 (1905); Georgia S. & F. Ry. v. Greer, 2 Ga. App. 516, 58 S.E. 782 (1907).
Meaning of "except for its negligence" in contract.
- The use of the words "except for its negligence," in a contract, meant the negligence contemplated by former Civil Code 1910, § 2726 (see O.C.G.A § 46-9-2), which was the failure to exercise extraordinary care. Atlantic Coast Line R.R. v. McLemore, 45 Ga. App. 154, 164 S.E. 464 (1932).
Usage or course of dealing may imply duty of safe-keeping.
- Contract imposing upon carrier exclusive duty of safe-keeping may be implied by usage or a particular course of dealing between the parties; but the implication that the carrier assumes the duty of immediate transportation and so responsibility as an insurer, without knowing to what place and to whom goods are to be shipped, must be clear. Bell v. Fitz, 78 Ga. App. 28, 50 S.E.2d 241 (1948).
Reduced rate as consideration for special contract.
- A contract for carriage, limiting the liability of a carrier in consideration of a reduced rate, is valid and binding. Western & A.R.R. v. Waldrip, 18 Ga. App. 263, 89 S.E. 346 (1916).
Carrier may not contract exemption from liability due to own negligence.
- Common carrier cannot, by special contract, exempt oneself from liability for loss occasioned by the carrier's own negligence. Berry v. Cooper & Boykin, 28 Ga. 543 (1859); Purcell v. Southern Express Co., 34 Ga. 315 (1866); Georgia R.R. v. Gann & Reaves, 68 Ga. 350 (1882).
While a common carrier may by special contract based upon a sufficient consideration modify or limit the carrier's common-law liability in the transportation of freight, the carrier cannot make a valid contract exempting oneself altogether from negligence. Bugg v. Perry & Faircloth, 42 Ga. App. 523, 156 S.E. 708 (1931).
A railroad company was under the duty, as a common carrier, of exercising diligence in transporting goods; and although it may relieve itself from its liability as an insurer of such goods, it was well established that it may not, by special contract under former Civil Code 1895, § 2276 (see O.C.G.A § 46-9-2), limit or procure release from its liability for negligence in so doing. Evans v. Josephine Mills, 124 Ga. 318, 52 S.E. 538 (1905); Hearn v. Central of Ga. Ry., 22 Ga. App. 1, 95 S.E. 368 (1918).
An express contract entered into by the carrier and the passenger, under the terms of which the carrier is released from all liability to the passenger for personal injuries received while a passenger on a freight train, is in effect a contract by which the carrier undertakes to relieve itself from the consequences of the negligence of itself and servants, and cannot be enforced. Central of Ga. Ry. v. Lippman, 110 Ga. 665, 36 S.E. 202, 50 L.R.A. 673 (1900).
Arbitrary limitation as to amount recoverable impermissible.
- While a bona fide agreement may be made as to the value of property to be transported, as a basis for fixing the charges, and may be valid, yet a common carrier cannot, even by express contract, put an arbitrary limitation upon its liability for damages. Such a contract is contrary to public policy. Central of Ga. Ry. v. Hall, 124 Ga. 322, 52 S.E. 679, 110 Am. St. R. 170, 4 L.R.A. (n.s.) 898, 4 Ann. Cas. 128 (1905); Southern Express Co. v. Hanaw, 134 Ga. 445, 67 S.E. 944, 137 Am. St. R. 227 (1910).
Value of goods stipulated in carrier's receipt not binding upon owner.
- Stipulation in receipt given by carrier as to value of goods is not binding upon the owner unless expressly agreed to by the owner; and in the event of a breach of the contract of carriage by the carrier, the owner is entitled to recover full damages as shown by the evidence, regardless of such statement as to the value of the goods. Southern Express Co. v. Briggs, 1 Ga. App. 294, 57 S.E. 1066 (1907).
Contract must be independent of receipt.
- The express contract made with the shipper of the goods, limiting the legal liability of the common carrier under former Code 1868, § 2042 (see O.C.G.A § 46-9-2), must be made independently of the receipt given for the goods, and be proved independently thereof, as any other contract was proved, when entered into by two or more parties to it. Southern Express Co. v. Purcell, 37 Ga. 103, 92 Am. Dec. 53 (1867).
Stipulation of limitation in receipt insufficient.
- The mere insertion, in a printed form of receipt used by an express company, of terms limiting its liability, and the delivery of such a receipt to a shipper, without more, will not under former Civil Code 1910, § 2726 (see O.C.G.A § 46-9-2) suffice to make an express contract for the purpose of limiting its liability as a common carrier. Southern Express Co. v. Hanaw, 134 Ga. 445, 67 S.E. 944, 137 Am. St. R. 227 (1910).
The carrier cannot limit liability by entry on receipts given, though the carrier may make an express contract. Former Code 1863, § 2041 (see O.C.G.A § 46-9-2) was intended to require the assent of the shipper to be given to any modification of the common law contract of common carriers. Southern Express Co. v. Newby, 36 Ga. 635, 91 Am. Dec. 783 (1867).
A stipulation in a receipt, not known to the shipper, given to the shipper by an agent of an express company, does not limit the company's liability as a common carrier. Mosher & Co. v. Southern Express Co., 38 Ga. 37 (1868).
Reference in receipt to provision in bill of lading.
- The inclusion in a receipt given by a compress company to the owner of cotton of a provision that it was "subject to all the conditions of bill of lading of the carrier, which may be issued in exchange for this receipt," and the existence in the printed conditions on the back of the bill of lading of a statement that "No carrier or party in possession of all or any of the cotton hereby described shall be liable for any loss therefor or damage thereto by . . . fire," did not constitute such an express contract between the shipper and carrier as to relieve the latter from liability for loss occurring by fire. Atlantic Compress Co. v. Central of Ga. Ry., 135 Ga. 140, 68 S.E. 1028 (1910); Seaboard Air-Line Ry. v. Atlantic Compress Co., 135 Ga. 413, 69 S.E. 566 (1910).
Carrier cannot limit liability by notice of special acceptance.
- Carrier cannot vary the carrier's responsibility by notice or special acceptance, such being void as contravening the policy of the law. Fish v. Chapman & Ross, 2 Ga. 349, 46 Am. Dec. 393 (1847).
Liability of carrier cannot be limited by mere notice in bill of lading; but if a special contract be incorporated in the bill of lading, and signed by both parties, it is sufficient. Georgia R.R. v. Spears, 66 Ga. 485, 42 Am. R. 81 (1881); Georgia R.R. v. Gann & Reaves, 68 Ga. 350 (1882).
Under former Code 1882, § 2068 (see O.C.G.A § 46-9-2), a carrier could not limit its liability by inserting in a bill of lading a provision that, for all loss or damage occurring in the transit, the legal remedy should be sought and held only against the particular carrier in whose custody the cotton might be at the time thereof, there being no express contract to that effect, the bill of lading being signed only by the agent of the company, and not having been agreed to by the shipper. Central R.R. v. Dwight Mfg. Co., 75 Ga. 609 (1885).
Assent of shipper necessary to limitation placed in bill of lading.
- A stipulation in a bill of lading which exempted the carrier from liability unless notice was given of the damage within a specified time, was one of the matters forbidden by former Code 1882, § 2068 (see O.C.G.A § 46-9-2), and was not effectual without proof of assent thereto by the shipper. Central R.R. v. Hasselkus & Stewart, 91 Ga. 382, 17 S.E. 838, 44 Am. St. R. 37 (1892); McElveen & Hardage v. Southern Ry., 109 Ga. 249, 34 S.E. 281, 77 Am. St. R. 371 (1899). See also Albany & N. Ry. v. Merchants & Farmers Bank, 137 Ga. 391, 73 S.E. 637 (1912).
Signature of shipper.
- Under former Civil Code 1895, § 2276 (see O.C.G.A § 46-9-2) a provision of the bill of lading that the railroad should only be liable for the safe delivery of the goods to its connecting carrier was without effect to relieve it from liability for damage to the goods while in the possession of the connecting carrier, unless such bill of lading was signed by the shipper. Central of Ga. Ry. v. Kavanaugh, 92 F. 56 (5th Cir. 1899).
Where bill of lading attached to the plaintiff's petition shows that it was signed by the carrier's agent alone, and not by the shipper, the plaintiff was not bound by any stipulation therein by which it was sought to limit the liability of the carrier. Lamb v. McHan, 17 Ga. App. 5, 86 S.E. 252 (1915).
Using entry on ticket for making of express contract.
- Entry on ticket that it must be used within time specified did not make express contract under former Civil Code 1895, § 2276 (see O.C.G.A § 46-9-2), unless the purchaser at the time the ticket was delivered knew of the entry and assented to its terms. Boyd v. Spencer, 103 Ga. 828, 30 S.E. 841, 68 Am. St. R. 146 (1898).
Presumption against carrier.
- Where there was a special contract shown, limiting the liability of the carrier of live stock, where the plaintiff proved that the stock was lost or injured while in the possession of the carrier, the law would raise a presumption of negligence against the carrier, which must be rebutted by proof showing the exercise of that degree of diligence required by the contract. Georgia S. & F. Ry. v. Greer, 2 Ga. App. 516, 58 S.E. 782 (1907).
Shipper's burden of proof as to liability.
- Where a shipper signed a contract under former Civil Code 1895, § 2276 (see O.C.G.A § 46-9-2) limiting the liability of the common carrier and reciting that it was made in consideration of a reduced rate of freight, such recital was prima facie true, and the burden was upon the shipper to prove the contrary. Georgia S. & F. Ry. v. Greer, 2 Ga. App. 516, 58 S.E. 782 (1907).
Admissibility of parol evidence to show special contract.
- Parol evidence was admissible to show special contract between a shipper and a common carrier under former Code 1863, § 2041 (see O.C.G.A § 46-9-2), notwithstanding the carrier's clerk had given a receipt, specifying the terms on which the freight was received. Purcell v. Southern Express Co., 34 Ga. 315 (1866).
Limitation of liability of livestock carrier by special contract.
- Common carrier of livestock may limit the carrier's liability by special contract, as recognized in former Code 1873, § 2068 (see O.C.G.A § 46-9-2). Georgia R.R. v. Beatie, 66 Ga. 438, 42 Am. R. 75 (1881); Georgia R.R. v. Spears, 66 Ga. 485, 42 Am. R. 81 (1881).
Baggage.
- Where the evidence showed that the plaintiff had entered into an express contract in which it was agreed that the defendant would not be liable for loss of baggage beyond its own line, and that the baggage alleged to have been lost was delivered by the defendant to the connecting line, and not returned to the defendant, a recovery for the plaintiff was unwarranted. Southern Ry. v. White, 108 Ga. 201, 33 S.E. 952 (1899).
Agent delivering property to carrier.
- If the agent delivers the property in the agent's own name and the principal is undisclosed, the latter is bound by any special contract, but if the company receives the goods as those of the principal, and, without the knowledge or consent of the latter, the carrier attempts to make a special contract with the agent, the principal is not bound thereby, unless the principal does some act from which the law infers a ratification. Wellborn v. Southern Ry., 6 Ga. App. 151, 64 S.E. 491 (1909).
Liability of carrier not insurer under contract.
- Where carrier was not insurer under contract, it was only bound to exercise ordinary diligence in regard thereto and it was not required to exercise extraordinary care and diligence to prevent the car of cream and milk from spoiling. Brown-Rogers-Dixson Co. v. Southern Ry., 79 Ga. App. 449, 53 S.E.2d 702 (1949).
Cited in Central R.R. v. Combs, 70 Ga. 533, 48 Am. R. 582 (1883); Phillips v. Georgia R.R. & Banking, 93 Ga. 356, 20 S.E. 247 (1893); Southern Ry. v. Adams, 115 Ga. 705, 42 S.E. 35 (1902); Ragsdale, Harper & Weathers v. Southern Ry., 119 Ga. 627, 46 S.E. 832 (1904); Central of Ga. Ry. v. City Mills Co., 128 Ga. 841, 58 S.E. 197 (1907); Atlantic Compress Co. v. Central of Ga. Ry., 135 Ga. 140, 68 S.E. 1028 (1910); Hearn v. Central of Ga. Ry., 22 Ga. App. 1, 95 S.E. 368 (1918); Bloomberg-Michael Furn. Co. v. Urquhart, 38 Ga. App. 304, 143 S.E. 789 (1928).
RESEARCH REFERENCES
ALR.
- Stipulation releasing carrier from liability for injury to free passenger as affecting liability for gross negligence or willful or wanton injury, 9 A.L.R. 501.
Stipulation limiting amount of carrier's liability as applicable where goods are stolen by its employee, 52 A.L.R. 1073.
Refusal on grounds of public policy of forum to enforce stipulation in carrier's contract limiting its liability, valid according to the proper law of the contract, 57 A.L.R. 175.
Provision in telegraph or carrier's contract regarding amount of recovery or damages as provision for liquidated damages (or valuation of right) or a mere limitation of liability, 128 A.L.R. 632.
Limitation of amount of interstate carrier's liability on basis of reduced rate as dependent on shipper's opportunity to choose, or knowledge of, alternative rate, 165 A.L.R. 1005.
Limitation of liability for personal injury by air carrier, 13 A.L.R.2d 337.
Validity and construction of stipulation exempting carrier from liability for loss or damage to property at nonagency station, 16 A.L.R.3d 1111.
Limitation of liability of air carrier for personal injury or death, 91 A.L.R. Fed. 547.