This is a consolidation of actions, each action expressed in a number of counts, and each count praying for the recovery of the sum of $500 for a carload of watermelons received, as it is alleged, and accepted by the railroad company to be transported and delivered within a reasonable time to plaintiff at Jersey City, New Jersey, and alleging that by reason of the failure so to transport and deliver, a large number of the melons were wholly lost and the remainder delivered in a bad and damaged condition.

The car numbers are given, the places of receipt, all of which were in North Carolina, and the dates, all between July 26 and August 2, 1912, both dates inclusive.

The answers of defendant denied the allegations of the complaint and set up, besides, the following defenses: If the property came into the hands of defendant for the purpose of transportation, it did so as to each and every count of the complaint under the terms and conditions of a certain bill of lading issued to plaintiff by the initial carrier of the property, pursuant to the provisions of the Interstate Commerce Act, constituting an express agreement whereby the defendant was to be relieved from any and all liability for damage to the property resulting from delay in transportation and delivery if the delay was caused by (a) a strike or strikes among defendant's employees; (b) an accumulation of freight at any point; (c) or by any other cause or causes over which defendant had no control.

It is alleged that a strike did take place among defendant's employees and continued from July 9, 1912, to the 21st of that month, which strike was the cause of the alleged delay; also that an accumulation of freight did occur at Jersey City, which continued from July 9 to August 15 and beyond.

It is further alleged as a defense that no claim for the loss or damage to the property was made in writing, as required by the respective bills of lading of defendant at the point of delivery of the property within ten days after its delivery, or after due time for its delivery to plaintiff, though it was agreed between plaintiff and defendant that such claim should be made at the time, place, and in the manner mentioned.

Nor was there any claim for such loss or damage made in writing to defendant at the point of delivery or point of origin within four months after the delivery of the property, or after a reasonable time for delivery, though it was expressly agreed that such claim should be made at the time, place, and in the manner mentioned, and, if not so made, defendant should not be liable.

It will be observed, therefore, that the basis of the action is that certain carloads of watermelons were received for shipment by defendant at certain places in North Carolina for transportation to and delivery at Jersey City, New Jersey, and that defendant failed to transport and deliver the same within a reasonable time, in consequence of which a large number of the melons were lost and the others delivered in a bad condition.

In point of fact the melons were not delivered to defendant in North Carolina, but in such state to a carrier with which defendant had connections, and were delivered to defendant at Edgemoor, Delaware, to be transported from there to Jersey City, and were so transported.

The melons were transported on through bills of lading issued by the initial carrier, which contained the stipulations upon which the defenses are based, to wit: (1) That the delay in transportation and delivery was caused by a strike, accompanied by demonstrations of violence over which defendant had no control and against which it could not contend; (2) that there was a congestion of freight, due to causes beyond its control; and (3) that claims for damages were not made within the time required by the bills of lading,—that is, within ten days in some cases, thirty days in others, and four months in others.

The ultimate basis of these defenses is the Carmack Amendment to the Interstate Commerce Act. What this amendment requires of shipper and carrier becomes the question in the case.

The case involves, as we have said, a number of actions tried together and submitted to one jury. Plaintiff was plaintiff in all of them and obtained judgment which was affirmed by the court of errors and appeals on the authority of another case of like kind.

There was a stipulation which concentrated the issues and removed from controversy the amounts involved. For instance, as to the latter it was stipulated that the value of the melons at the time and place of shipment was $13,465, and that they were sold at the place of delivery for $8,895, being the best price which could be obtained for them, owing to their damaged condition. And it was further stipulated that the freight charges paid by plaintiff amounted to the sum of $5,484.59.

As to the other elements, it was stipulated that the melons were received and accepted by defendant at Edgemoor, Delaware, for transportation to Jersey City, New Jersey, in accordance with the bills of lading; that the usual and customary time for transportation was about seven hours, under the most favorable circumstances; that plaintiff was, at the time of bringing the actions, and is now, the lawful holder of the bills of lading; that the melons were received at Edgemoor by defendant in apparently good order, but were in a damaged condition when delivered to plaintiff at defendant's delivery yard at Jersey City, and that claims for damages were duly made in writing, as required by the bills of lading.

The cases are designated as the '64-count case,' the '13-count case,' and the '11-count case.' All of the bills of lading in the '64-count case,' one in the '13-count case,' and four in the '11-count case,' contain a provision exempting the carrier from liability for loss or damage resulting 'from riots or strikes.' Twelve of the bills of lading in the '13-count case' and seven in the '11-count case' provide that the carriers should 'not be liable for any injury to or decay of fruits or vegetables, or other perishable freight due to detention or delay occasioned by an accumulation of freight at any point . . . or to any other causes over which the carriers have no control.' And there is difference in times of demands.

A motion is made to dismiss on the ground that no Federal question appears in the record, or alternatively, if one appears, it is without merit. In support of the contentions it is said the questions in the case are (1) whether, it being stipulated that plaintiff was the holder of the bills of lading, it was the owner of the melons at the time the shipments were made; (2) whether there was any evidence of negligence of defendant which should have been submitted to the jury; and (3) whether plaintiff was entitled to recover the freight paid by it.

The first question involves the Carmack Amendment; and, considering it, the court of errors and appeals decided that 'any lawful holder of a bill of lading issued by the initial carrier pursuant to the Carmack Amendment . . . upon receiving property for interstate transportation, may maintain an action for any loss, damage, or injury to such property caused by any connecting carrier to whom the goods are delivered.' [88 N. J. L. 235, 96 Atl. 588.] Citing Adams Exp. Co. v. Croninger, 226 U. S. 491, 57 L. ed. 314, 44 L.R.A.(N.S.) 257, 33 Sup. Ct. Rep. 148.

We are not prepared to say that a contest of this view is frivolous, and the motion to dismiss is denied. Besides, it is contended that the shipments having been in interstate commerce, they are subject to and governed by the Interstate Commerce Act.

Coming to the merits of the question, however, we concur with the court of errors and appeals in its construction of the Carmack Amendment. It provides: 'That any common carrier . . . receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder [italics ours] thereof for any loss, damage, or injury to such property caused by it. . . .' [34 Stat. at L. 595, chap. 3951, Comp. Stat. 1913, § 8592.]

The crucial words are 'lawful holder.' Defendant contends that they mean 'the owner or someone shown to be duly authorized to act for him in a way that would render any judgment recovered in such an action against the carrier res adjudicata in any other action.' And § 8 of the Interstate Commerce Act is referred to as fortifying such view. It provides that 'such common carrier shall be liable to the person or persons injured' in consequence of any violations of the act.1

To accept this view would make § 8 contradict the Carmack Amendment (§ 20), it having only a general purpose, whereas the purpose of the amendment is special and definitely expresses the lawful holder of the bill of lading to be the person to whom the carrier shall be liable 'for any loss, damage, or injury' to property caused by it. Adams Exp. Co. v. Croninger, supra.

The next contention of defendant is that there was error in applying the burden of proof upon the motion to direct a verdict for defendant.

The grounds of the contention urged at the trial and now repeated are that, by certain of the bills of lading, the carrier is relieved from liability in case of a strike, by certain others in case of delays occasioned by causes beyond its control, and by others in case of an accumulation of freight proved to be a matter beyond the control of the carrier. And these causes having been proved, it is contended the carriers were brought within the protection of the stipulation, and it became incumbent upon plaintiff to show that defendant, in one way or another, failed 'to handle the situation at that time in a way which was free from negligence.' It was and is contended that the whole issue was shifted 'form the general allegation of negligence to the allegation that the injury was caused because the defendant failed to perform the duty which it was obliged to perform under the law.' Counsel concede that the whole question was whether, when the proof was that 'there was the excepting cause,' defendant did what it 'should have done to meet the situation;' and the burden was upon the plaintiff to show that the carrier did not do what it 'ought to have done.'

The court rejected the contention. It replied that merely proving an accumulation of freight or a strike did not shift the burden of proof, but that to complete its defense the carrier must show that the strike or the accumulation of freight caused the delay in executing its contract to deliver the property.

If we should grant that the ruling was technically erroneous, its effect in the case can hardly be estimated, in view of the instructions of the court to the jury, entirely considered. They are too long to quote, but we may say of them that they were very carefully expressed to give the jury the elements of decision.

The court told the jury that defendant had proved a cause beyond its control; that is, a strike; and, at the request of defendant, further instructed that if no negligence on the defendant's part was shown, defendant was not liable, and that the burden of proving such negligence was upon the plaintiff. A like instruction was given as to any cause beyond defendant's control, including an accumulation of freight, if reasonable care was exercised by defendant to relieve the situation, that negligence was not to be presumed, but must be affirmatively proved; and that the burden of proving it was upon plaintiff. 'The question is,' the court said, 'whether or not, in the light of what occurred over there, the defendant in this case has been shown by the greater weight of the evidence to have been negligent in the forwarding and the delivery of this freight. If it has been, why these plaintiffs are entitled to recover and to have you assess their damages, unless some of these other defenses have been made out by the greater weight of the evidence. If the defendant has not been shown to have been negligent in the particular indicated, why, then, manifestly, the defendant is not responsible, and the verdict in all the cases where these rules apply would have to be for the defendant.'

Defendant, however, contended that there was not sufficient evidence of negligence to justify the submission of the case to the jury. Counsel, in attempted support of the contention, select certain elements in the case, ignoring others and their probative value. That is, counsel ignore the fact, of which there was evidence, that the melons were received for shipment after the strike was over, and the fact, of which there was evidence, that the delay in delivery was caused by the use by defendant of tracks where melons were usually delivered for the delivery of peaches, usually delivered elsewhere, to the exclusion of melons, which were placed in storage tracks at the 'meadows.'

The fourth contention is that plaintiff should not recover as part of its damages the freight paid upon delivery at destination.

The contention is rested upon the prohibition of the Interstate Commerce Act against deviation from the filed tariffs and schedules and against rebates and undue preferences and discriminations. It is not asserted in the present case that there was an evasion of the statute or an attempt to evade, but that the possibility of such result makes the recovery of freight illegal. It is urged, besides, that the melons were carried to destination and were there sold by plaintiff or on its account, and that freight thereby accrued and was properly paid. For which 2 Hutchinson on Carriers, 3d ed. § 802, is cited. But the cited authority shows that to be the rule when the loss or damage results from no fault or negligence of the carrier. And, besides, to the contentions the plaintiff opposes the terms of the bills of lading, they providing that the amount of loss or damage for which a carrier is liable 'shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if paid) at the place and time of shipment. . . .'

Some of the bills of lading do not contain this provision, but it was agreed at the trial that the proper measure of damages was to be computed upon the basis of the value of the property at the place and time of shipment and that such measure should be read into all of the bills of lading. As plaintiff further says, to recover the damages sustained by it, based upon this value, plaintiff must receive from defendant the difference between this value and the proceeds of the sale, and the freight paid. In this we concur, and therefore there was no error in including in the recovery such freight. Shea v. Minneapolis, St. P. & S. Ste. M. R. Co. 63 Minn. 228, 65 N. W. 458; Davis v. New York, O. & W. R. Co. 70 Minn. 37, 44, 72 N. W. 823; Horner v. Missouri P. R. Co. 70 Mo. App. 285, 294; Tibbits v. Rock Island & P. R. Co. 49 Ill. App. 567, 572. The plaintiff was no more than made whole.

Affirmed.