Upon Petition for Rehearing.
[15] It is urged in the petition for rehearing that the court has not given legal effect to the clause in the bill of lading involved in the case, Which is as follows:
“Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouseman, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only.” (Italics supplied.)
It is argued that this identical provision in a bill of lading was held valid and binding in the case of Southern Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836; and that therefore it should be held by us as fixing the character of the liability of the terminal carrier in this case as that of a warehouseman after the expiration of forty-eight hours after both Chandler and DeWald were notified of the arrival of the goods at destination. And the discussion by the Interstate Commerce Commission, in the Matter of Bills of Lading, decided April 14, 1919, 52 I. C. C. Rep. 671, at pp. 696, 700, 701 and 712, is also relied upon. But *721neither the Supreme Court decision nor the discussion of the Interstate Commerce Commission referred to sustains the position that the clause in the bill of lading in question is applicable or binding in cases of interstate shipments when the relationship of shipper and carrier has not been terminated by the expiration of a reasonable time for the removal of the goods after the giving of the notice to the party entitled to receive them.
In the Prescott Case, it developed in evidence on the trial that the consignee accepted the goods, took away a portion of them, and left the residue' merely for his convenience until he could call for them, and, as stated in the opinion of the court, “at the close of the testimony the plaintiff withdrew his causes of action against the defendant as a common carrier * * * and the case went to the jury solely with respect to the liability of the defendant as warehouseman.” The loss in the case was occasioned by lire while the goods remained in the custody of the railroad company in the admitted capacity of warehouseman. •; And, as clearly appears from the opinion of the court in the Prescott Case, and from what is said with respect to that case and other cases by the Interstate Commerce Commission in its report in the Matter of Bills of Lading, 52 I. C. C. Rep., at pp. 696 to 700, inclusive (referred to at p. 712), the Prescott Case has not changed the established rule that where the goods are not accepted, the liability of the carrier, as carrier, under the Carmack amendment, does not cease until the expiration of a reasonable time for the removal of the goods after the giving of the notice to the party entitled to receive them. And the Interstate Commerce Commission, in its said report, unquestionably recognizes that such rule was in force as late as April 14, 1919, unaffected by the clause in bills of lading which is drawn in question in the case before us, notwithstanding the Prescott Case, which is expressly referred to and discussed in such report.
*722Moreover, the Carmack amendment, as amended by the first Cummins amendment, which latter was approved March 4, 1915, and was in force when the cause of action in-the instant case arose, expressly provides that the liability of the carrier, as carrier, imposed by the statute,should exist “notwithstanding any limitation of liability * * * in any * * * receipt or bill of lading, or in * * * any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made, is hereby declared to be unlawful and void.” Therefore, even if the clause in the bill of lading in question were to be construed as attempting to fix the arbitrary limit of time therein mentioned as the time within which the relationship of shipper and carrier may be terminated by the notice prescribed therein, it would be void, under the provision of the statute just quoted, in all cases in which, under the facts ■of the particular case, such time is found not to be'the' reasonable time aforesaid.
- There is but one other ground for a rehearing urged in the petition therefor, and that is to the effect that the distinction made in the original opinion between the bill of lading involved in the case and an ordinary order notify bill of lading is unsound. The distinction referred to is, as we think, a sound distinction as bearing upon the ascertainment of “the party entitled to receive” the goods as consignee. No reason is suggested why we should consider our conclusion unsound on that subject, and we see none.
The petition for rehearing will therefore be refused.
Refused