s.[271]

Liabilities and Penalties

A statute making the initial carrier[272] or the connecting or
delivering carrier,[273] liable to the shipper for the nondelivery of
goods is not unconstitutional; nor is a law which provides that a
railroad shall be responsible in damages to the owner of property
injured by fire communicated by its locomotive engines and which grants
the railroad an insurable interest in such property along its route and
authority to procure insurance against such liability.[274] Equally
consistent with the requirements of due process are the following two
enactments; the first, imposing on all common carriers a penalty for
failure to settle within a reasonable specified period claims for
freight lost or damaged in shipment and conditioning payment of that
penalty upon recovery by the claimant in subsequent suit of more than
the amount tendered,[275] and the second, levying double damages and an
attorney's fee upon a railroad for failure to pay within a reasonable
time after demand the amount claimed by an owner for stock injured or
killed. However, only in the event that the application of the latter
statute is limited to cases where the plaintiff has not demanded more
than he recovered in court will its constitutionality be upheld;[276]
but when the penalty allowed thereunder is exacted in a case in which
the plaintiff demanded more than he sued for and recovered, a defendant
railroad is arbitrarily deprived of its property without due
process.[277] The requirements of fair play are similarly violated by a
statute which, by imposing double liability for failure to pay the full
amount of damages within 60 days after notice, unless the claimant
recovers less than the amount offered in settlement, in effect penalizes
a carrier for guessing incorrectly what a jury would award.[278]

To penalize a carrier which has collected transportation charges in
excess of established maximum rates by permitting a person wronged to
sue for and collect as liquidated damages $500 plus a reasonable
attorney's fee is to subject the carrier to a requirement so
unreasonable as to be repugnant to the due process clause; for such
liability is not only disproportionate to actual damages, but is being
exacted under conditions which do not afford the carrier an adequate
opportunity for safely testing the validity of the rates before any
liability for the penalty attaches.[279] Where it appears, however, that
the carrier h