made to hire nonunion labor by defendants because they were bound by the terms of the closed-shop agreement.

Every common carrier is under a duty to receive and transport any property tendered to it for transportation, provided the property is such as it holds itself out as willing to carry, or as it usually carries. The liability of common carriers for goods which they have received for transportation is that of an insurer. It has been stated that nothing will excuse failure to transport such merchandise safely except an act of God or public enemies, inherent defects in the merchandise, or fault of the shipper. Common carriers are also bound to transport such merchandise promptly, but they are not insurers of prompt transportation. Their duty is that of reasonable diligence. For mere delay, not affecting the safety of the merchandise transported, there is no liability if due diligence is proved. There is no question presented here as to loss or damage to shipments received by the carriers. Nor do we have jurisdiction in such matters. A common carrier's duty to receive and transport therefore is not an absolute one, but is subject to reasonable limitations and conditions. It may refuse to receive property for shipment if transportation on its line or the line of a connecting carrier has become impossible or impracticable because of circumstances beyond its control, as, for example, a strike, the strike not being induced or caused by the carrier. Gage v. Arkansas Cent. R. Co., (160 Ark. 402) 254 S. W. 665. In that case, the refusal of the defendant carrier to receive a shipment destined to a point on the line of a connecting carrier which had declared an embargo at the destination because of a switchmen's strike at that point was upheld. See also Galveston, H. & S. A. Ry. Co. v. Karrer, 109 S. W. 440.

In Sterling v. St. Louis, I. M. & S. Ry. Co., (Tex. Civ. App.) 86 S. W. 655, in an action against the defendant therein for injury to cattle by delay in transit caused by interference of strikers in the movement of trains, it was held that all that can lawfully be required of a common carrier of livestock in respect to the time of transporting and delivering them is that it shall exercise reasonable care to forward and deliver same promptly; that there is no absolute duty resting upon a common carrier of livestock to transport and deliver same within what is, under ordinary circumstances, a reasonable time, when the action of men acting unlawfully, such as mobs, delays the running of its trains, through no fault on its part; that the only duty resting on the carrier under such circumstances, if not otherwise at fault, is to use reasonable care and diligence to overcome the obstacles interposed, and to forward such stock as promptly as reasonable diligence and care permit and require.

In Warren v. Portland Terminal Co., (121 Me. 157) 116 Atl. 411, suit was brought for damages caused by delay in unloading a cargo of coal. The defense interposed was that, admitting its obligation to discharge the ship, and that under ordinary conditions the unloading would have been completed on August 31, the defendants were not liable because the delay until September 10 was entirely due to a longshoremen's strike for which defendants were not responsible. It was urged therein that a strike is the act of the carrier's servants and for these acts it is responsible. In a review of the law in that case, the court stated, in part, as follows, beginning at page 412:

A strike it is urged is the act of the carrier's servants, and for these acts it is responsible. It is true, of course, that a master is charged with responsibility for the acts of its employee within the scope of his employment. But refusal to be employed is not within the scope of his employment. A servant may or may not be justified in refusing to work, but his refusal is not a part of his work.

Moreover, when an employee, without the consent of his employer, strikes and refuses to return to his work, he is no longer an employee. Hutchinson on Carriers, (2d Ed.) § 334; Geismer v. Railway Co., 102 N. Y. 570, 7 N. E. 828, 55 Am. Rep. 837; Railway Co. v. Hollowell, 65 Ind. 195, 32 Am. Rep. 68.

Some authorities support the plaintiff's contention that a "peaceable strike" cannot be a good defense to an action against a carrier for delay in transporting goods entrusted to it for carriage. Strikes accompanied by violence will, but peaceable strikes will not, so these cases say, excuse a carrier's delay in carrying merchandise received by it for transportation. Note 35 L. R. A. 625, and citations.

The opinions in these cases must be based upon one of two theories:

(1) That one who has been an employee, but who has struck and refused to return to his work, is still an employee for whose conduct the employer is responsible; or

(2) That a common carrier's implied contract of insurance applies not only to safety, but to promptness of transportation, and (if applicable to the case at bar) extends not only to goods received for carriage, but to those tendered, though not received. We think that neither of these theories is sound.

With actions upon express contracts we are not concerned, nor are we concerned with actions for loss of or injury to goods in transit for which the law makes the carrier liable as insurer. To such actions strikes cannot be interposed as a defense.

For damages caused by mere delay a carrier is responsible only when it fails to exercise reasonable diligence and care. It must exercise reasonable diligence in supplying itself with suitable and sufficient facilities and employees, in averting strikes, and saving its patrons from strike losses. If it performs this duty, it cannot be held liable through having imputed to it the fault of persons, once its servants, who have by striking put an end to the relation of master and servant.

We hold that the defendant was bound to discharge the cargo of coal and to transport it to Cumberland Mills within a reasonable time. What a reasonable time is depends upon the "circumstances of the particular case." Johnson

v. Railroad, 111 Me. 263, 88 Atl. 988; Empire Co. v. Philadelphia Co., 77 Fed. 919, 23 C. C. A. 564, 35 L. R. A. 623; 10 Corpus Juris 286.

The defendant was not necessarily bound to discharge the coal in a time that would have been reasonable under normal conditions. Empire Co. v. Philadelphia Co., supra; In re 2,098 Tons of Coal, 135 Fed. 320, 67 C. C. A. 671; Hick v. Raymond, 2 Q. B. 626; Marshall v. McNear (D. C.) 121 Fed. 428.

It was under obligation to use reasonable diligence to prevent the occurrence of the strike and to minimize its injurious consequences.

It was bound, moreover, to inform the plaintiffs of the fact of the strike and to keep them informed in relation to it, while the discharge was delayed so as to give the plaintiffs every reasonable opportunity to protect themselves from loss. Eastern Railway Co. v. Littlefield, 237 U. S. 145, 35 Sup. Ct. 489, 59 L. Ed. 878.

In American Fruit Distributors v. Hines, (55 Cal. App. 377) 203 Pac. 821, it was held that the mere proof of the occurrence of a strike would not establish freedom from the obligation to respond in damages to the shipper; that to entitle the carrier to justify its failure to carry the merchandise of the plaintiff, the burden was upon it not only to show the existence of a strike, but to show further that it exerted all reasonable efforts in attempting to procure men to manage trains, and that such efforts were without avail; and as to whether such efforts have been used is generally a question of fact. In that case it was stipulated that the shipper assumed all risk of damage, injury or loss sustained from delay or detention in transportation "occasioned by mob, strike, or threatened violence, etc., or any other cause than the negligence of the carrier." In discussing the findings of the trial judge, the court stated, at page 826:

It was evidently the view of the learned judge that the defense, based upon alleged strike conditions and the limiting term of the bill of lading, could only be established by proof that the carrier was prevented from securing men to replace the strikers and the sympathizing train operators by mob violence and intimidation exercised by persons outside of its control. Such conditions, if they existed, would indeed assist in establishing the defense, although we are not prepared to declare that the limiting term of the bill of lading could only be invoked where there existed violence, actual or threatened, on the part of the persons disconnected from the carrier's employ.

[8] We are of the view that where a carrier, after a strike which is brought about through no fault of the employer, uses every reasonable effort to fill the places of the strikers, and every reasonable effort to obtain men and means to care for property intrusted to it for shipment, which property is lost or destroyed while in its charge, the exceptional conditions may then be deemed to have been established and exoneration from liability will follow.

Turning to the facts in the instant proceedings, we think it is sufficiently clear upon this record that the defendants would have found it impossible to continue their operations with nonunion labor, and we are of the opinion that it was not incumbent upon them to force the issue to the point of resorting to force and violence. Be

cause of the comprehensive unionization of available labor and the existence of the closed-shop agreement, the defendants would have been confronted with strikes of their own labor if they had persisted in their attempts to serve the complainant, with the result that all of their operations would have been disrupted and probably brought to a standstill. The defendants were therefore faced with the choice, as they reasonably believed, of not serving the complainant and maintaining service to the general public, or of being compelled to discontinue all operations. Obviously, as between these defendants and the general public other than the complainant, the lack of service because of a general strike would have been caused by a strike in which the defendants were directly involved, and their position in defending suits for damages and proceedings before us similar to the instant proceedings, brought by other shippers, would have been more difficult, and their potential liability immeasurably magnified. Finally, the complainant urges that, even if it be assumed that under the circumstances prevailing at Portland the defendants found it impossible to serve its plant, this is not a valid excuse for the reason that the circumstances were created in part because of the "voluntary" action of the defendants in entering into a closed-shop agreement. This agreement, in part, requires that only union members shall be employed, and that the employer shall not discipline any employee "for upholding union principles." It also contains the following provision:

It is understood that the Union is not in favor of sympathetic strikes, and will do everything in its power to prevent them during the life of this agree ment. It is also understood and agreed that movements of freight in interstate commerce, or in intrastate commerce insofar as affects shipments from city to city, over lines of the Operator operating under certificates or permits issued by Federal or State authority or under jurisdiction of the Interstate Commerce Commission shall not be subject to interference. It shall not be a violation of this agreement for an employee to refuse to go through a picket line established by a bona fide A. F. of L. Union: * *. [Emphasis supplied.]

The sentence italicized was added to the renewal contracts executed as of March 1, 1941, during the course of the strike. As above indicated, it is a "union principle" not to cross a picket line of an affiliated union.

The complainant contends that "this agreement was the real reason for the failure to make any honest or sincere attempt to serve Wards, * **" It asserts that the shortage, if any, of skilled labor was the result of the conditions created by the closed-shop agreement, because thereunder all the operators agreed to employ only union members, and as union membership could be canceled for giving service to a picketed or boycotted shipper, the operators had sur

rendered their right to discipline those who refused to assist in giving service. Essentially, the argument is that the defendants' obligations as common carriers and under the closed-shop contracts are incompatible, and therefore it is unlawful for them to enter into the latter. In support of this argument, complainant states that the object of the union activities was to induce the defendants to violate the law in not serving the plant; that this is an illegal object; and that activities to achieve this aim are illegal. Numerous cases are cited in support of these propositions. We have not examined this question, and express no opinion with respect thereto. In our opinion that is a matter involving the labor relations between the carriers and their employees over which we have no jurisdiction. See Southeastern Motor Lines, Inc., v. Hoover Truck Co., Inc., 34 Fed. Supp. 390. That was an action for a preliminary injunction to compel defendants, their agents, servants, and employees to deliver freight to and to accept freight from plaintiff company, wherein the local union intervened. The facts therein were these. The union (Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers) had been engaged in an effort to organize the employees of all motor freight companies operating in and out of Nashville, Tenn., to bring them into the union and to obtain closed-shop contracts with all the motor carriers so operating in and out of Nashville. As part of its program the local union determined to organize the employees of plaintiff's company and to require plaintiff company to sign closed-shop contracts. Plaintiff was picketed solely for this purpose. Certain employees of certain defendant companies were members of the union and were therefore unwilling to cross the picket line. The union had closed-shop contracts with five of the defendant companies which contained a provision that employees shall not be required to cross picket lines. The unwillingness of these employees to cross the picket line and to handle interline freight from and to plaintiff company was one reason for the failure and refusal of defendant companies to interchange freight with plaintiff company. The court held that the case involved, and grew out of, a labor dispute as defined by the terms and provisions of the Norris-LaGuardia Act (29 U. S. C. 101-115, as amended). It further held that, if it should issue a mandatory injunction requiring the defendant companies, their agents, servants, and employees to deliver freight to and to accept freight from the plaintiff company, the practical effect thereof would be to make the defendants, members of the labor union in question, perform acts in violation or partial violation of their contract with said defendant companies and in direct conflict with the efforts of the local union to organize plaintiff's employees and require plaintiff to sign a closed