(dissenting). I differ from my majority Associates only as to 'the effect to be given the decisions of the United States Supreme Court in the Croninger and other cases, construing section 2p as amended by section 7 of the Carmack Amendment.
■Justice MoCO'Y says:
“The opinion in the Croninger case relates solely to the substantive law of liability or cause of action.”
I think the determination of the amount of plaintiff’s recovery under the bill of lading and the valuation therein, discussed in that case, also directly involved a construction of the act as to the remedy. It was held that the liability of the defendant was founded on common-law negligence, but it was also held that the remedy — the right to recover particular damages — was controlled by the contract or bill of lading, which was held to be valid and not in violation of section 20. The remedy was held to be predicated upon the contract for shipment, made obligatory upon both- -the initial and connecting carrier by the same federal statute. But aside from this, section 20 affirmatively declares the liability of the initial carrier to the holder of the shipping receipt, riot only for its own negligence, but also for the negligence of the connecting carrier. By the construction given the contract and the statute, in the federal decisions, the initial 'Carrier is made the principal, in its relations to the *70shipper, over, the whole route, and I think the connecting carrier is made responsible, not to the shipper, but to the initial carrier. Congress has undertaken to limit the right of contract of both the initial and. connecting carriers and to prescribe their respective liabilities, I think Justice Rurton in the Carl case, as in the Croninger case, had in mind the three forms of statutory liability specified in the body of section 20, when he said in the Carl case:
“The liability of any carrier in the route over which the articles were routed, for loss or damage, is that imposed by the act, as measured by the original contract of shipment, so far as it is valid under the act”— and did not have in mind any “remedy or night of action” saved by the proviso.
Justice Rurton, in the Croninger case, says:
“It (section 20) embraces the subject of the liability of the carrier under -a bill of lading which he must issue. * * * Almost every detail of the subject is covered so completely that 'there can be no rational doubt but that Congress intended to take possession of 'the subject and supersede all state regulations with reference to it.”
The “subject” referred to' is 'the subject-matter of section 20, that which defines and limits the right of contract and the liability both of the initial and the connecting carriers. In Atlantic C. R. R. Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 35 L. Ed. 167, 31 L. R. A. (N. S.) 7, Justice Rurton said of -this section of the act:
“The rule is adapted to secure the lights of the shipper by securing unity of transportation with unity of responsibility. The regulation is one which also facilitates the remedy of one who sustains a loss, by localizing the responsible carrier.”
This is in effect an adoption of the English rule which is that, upon a through contract, the shipper’s only action for damages -for default, no matter upon what line it occurs, is against the initial carrier. Elliott on Railroads, § 1441, and cases cited. •
It may be noted that under the original interstate commerce act and its amendments prior to the Carmack Act, there was no .compulsory through billing or rating. There was no compulsion *71on connecting carriers to make mutual contracts. All this is changed by the Carmack Act. Beale & Wyman on Railroad Rate Regulation, § 999. '
The conclusion reached by Justice McCOY in the majority opinion, and also the concurring opinion of Justice WHITING, is predicated upon the construction placed upon the proviso in section 20:
“That nothing in this section shall deprive any holder of sudh receipt or bill of lading of any remedy or right of action which he has under existing law.”
The majority opinion holds that the words “existing law” means the “general common law as declared by that court”;'that is, by the Supreme Court of the United States. Justice Lurton, in the Croninger case, after discusing both the -carrier’s liability -and the contract, as defined and limited by section 20, discusses the meaning of the words “existing law” in the proviso, as follows-:
“To construe this proviso as preserving, to the holder of any such bill of lading- any right or remedy which he may have had under existing federal law at the -time of -his action gives to 'it a more rational interpretation than one which would preserve rights and remedies under existing state laws, for the latter view would cause the proviso to destroy the -act itself. One illustration would be a right to a remedy against a succeeding carrier, in preference to proceeding against the primary- carrier, for a loss or damage incurred u-pon the lin-e of the former. The liability -of such succeeding carrier in the route .would be that imposed by this statute, and for which the first -carrier might have been made liable” '(if the shipper had brought the action against the initial carrier).
Unless the words “federal law” used by Justice Lurton are either ignored or treated as -obiter dictum, it would seem- difficult to reach the conclusion announced in the majority opinion, and avoid a conflict with the federal decisions.
Justice WHITING concedes the necessity of giving weight to the language of Justice Lurton, but.urges that'in the ■ Croninger case he was not discussing the liability of the - connecting carrier to the shipper. It is true that issue was not. directly involved in -that case. But the proviso in section 20, which de*72dares .that nothing in that section shall deprive the shipper of “any remedy or right of action which he has under existing ■law,” was discussed, and it cannot mean one thing when the court is discussing one question, and be given another meaning when it is discussing another question. It means just one ■thing, according to Justice Lurton, and he defined it finally when he declared that the words “existing law” means “federal law.”
■ “Common law as defined in the -federal courts'” cannot be ■held to be “federal law,” without convicting Justice Eurton of an extraordinarily careless use of ordinary legal term's. There certainly is no federal common law. The common law, “as defined in the federal ,courts,” is nothing more than the common law as it is said to exist in a particular state. Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508. It seems to me therefore that it iis the liability declared in the body of section 20, .and which is held to have its inception, in common-law negligence, to which Justice Eurton refers -in the extracts quoted by Justice WHITING, and not to “existing law” spoken of in- the proviso. If the liability declared in the body of section 20 is based on the “common law as defined in the federal courts,” ■and the proviso is also held to preserve any- “remedy or right of action” under the existing “common- law as defined- in the federal courts,” 'the proviso would be worse than meaningless — it would, as Justice Eurton says, “destroy the act itself.” On the contrary, it would seem that the proviso was inserted out of abundance of caution for the express purpose of saving any other “remedy or ■ right of action” given the shipper by “federal law,” which might otherwise be excluded by implication.
If Justice McCOY’s view that the words “remedy or right of action” relate only to the remedy — or the right to seek relief in court — be correct, then the whole'proviso might well be construed as intended to preserve the right to sue in state as well as federal courts, a right which was recognized' by “existing law,” and which possibly might have been deemed lost, under ¡the rule of exclusion.
Justice WHITING says that the right of the shipper to sue the connecting carrier was not passed upon in the Croninger case because that question was “clearly not raised by the issues of the cause,” and cites the fact that Justice Eurton also wrote *73the opinion in the Carl case. Justice WHITING says that the Carl “case proceeded upon the theory that the shipper had a right to sue such connecting carrier,” and also that “it was the liability to the shipper that was under consideration”; in other words, that Justice Lurton must have assumed a right of action by the shipper against the connecting carrier, in deciding that case. This facility of drawing conclusions when they sustain a theory and rejecting them when they do not is admirable in its simplicity and effectiveness. But Justice WHITING seems to have ignored the very explicit statement of Justice Lurton in the Carl case that:
“The sole question before the federal court was as to whether the plaintiff in error, as the final carrier in the route, was entitled to the benefit of 'the stipulations in the» release signed, releasing the primary carrier and all other railroads and transportation companies over whose lines * * * property may pass,” etc.
The care with which the court limits that decision to the one point involved deprives it of the significance assumed by Justice WHITING. That court has always held that the compulsory shipping contract' originates and measures the liability of both the initial and connecting carrier, and that each is entitled to the benefit of its lawful provisions.
Justice WHITING says, however, that the -connecting carrier “of course would not be a party to the shipping contract.” But the statute requires a thorough contract, and this necessarily makes the connecting carrier a party to- it, -and all the decisions give him the benefit o-f its lawful provisions. Justice Lurton meant this when he said:
“The liability of any carrier in the route * * * is that imposed by -this act, as measured by the original contract of shipment. * * *” ■
What liabilities are “imposed by this act?” Justice Lurton thus answers the question:
“It is a liability to any holder of the bill of lading which the primary carrier is required to issue for any loss, damage, or injury to such property, caused by it -or by any connecting carrier, to whom the goods are delivered.”
This is the only liability named in1 the statute in favor of *74the shipper. The other liability “imposed by the statute” is that cf the connecting carrier to the initial carrier, for loss occurring on the lines of the former, and for which the initial carrier has been compelled to pay. May it not be that the action of the shipper against the initial carrier was intended to be also an adjudication between the two carriers of the liability of the connecting carrier to the initial carrier, in view of the fact that the connecting carrier whose negligence occasioned the loss is required by the statute to pay the initial carrier “.the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment or transcript thereof.” A recovery against the initial carrier would Ibe thus effective to adjudicate every liability created by .the statute in a single action. When it appears that the shipper delivers goods to the initial carrier in good condition, and the last connecting carrier delivers them at destination in a damaged condition, in an action against the initial carrier .the burden of discovering the negligence, if any, which caused the injury, whether it occurred- on its; own line, or the line of the connecting carrier, 'is cast upon the initial carrier. If the loss occurred from- negligence of the connecting carrier, it is ■the real party in interest in any litigation which m'ay arise, and is presumed to be in possession, of the facts constituting a defense, and no> valid reason can be suggested for allowing the connecting carrier in effect to defend twice, first, by producing its evidence against the shipper, and then the same evidence against the initial carrier, in an action for reimbursement, upon facts involving the same acts of negligence.
The statute which, for the benefit of the shipper, creates “unity of transportation with unity of responsibility,” and “facilitates the remedy of one who- sustains a loss, by localizing the responsible carrier,” affords to the shipper benefits wh-ic-h in the legislative mind might well have been deemed to more than offset the one disadvantage urged, -viz., -that in some instances, the 'shipper might be required to- seek his remedy against the initial carrier in- a distant forum.
A review of -the rules governing the right of contract and the liabilities of carriers under such contracts, existing prior to the Carmack Amendment, I think would make clearer the rea*75sons for the adoption of a rule of single liability to- the shipper; but such review would unduly extend this dissenting opinion. These views are presented, not because of a belief that my own conclusions are infallible, -but because of the very grea-t importance of the question, and with a hope that it may be presented -to the proper count for consideration and final adjudication. Should- -the Supreme Court of the United States hereafter determine that I have mistaken the effect of the statute and of its decisions, I shall only entertain a deeper respect for the opinions of my majority associates.
GATES, J., concurs in -the views expressed by Judge SMITH.