« AnteriorContinuar »
conceded, there was never any notification | indicates that such was their intention. In given the steamship company of the arriv- order to justify the defendant's construcal of this cotton. Without that notification tion, the claimed extent of the departure counsel does not contend that either of those from the implied contract of the common clauses applies. The argument at the bar law must clearly appear in the language was devoted to maintaining the proposition which is used in the special contract. The that the railway company was exempted clause 'no carrier shall be liable delay,' under clause 1l, and the other clauses in the when applied to the facts in this case, meant bill of lading were referred to for the pur- that the defendant should not be liable for pose of giving point to that contention. It the delay of the steamship company, but de was urged at the bar that under the 11th lay would not occur until it knew or had clause the question of notification was im- heard of the time of arrival of the cotton. material, because, although a notification The same idea of notification to the conhad not been given, yet the cotton, upon its necting line must also run through the enarrival at the pier and after it had been tire paragraph, and, while the term 'awaitunloaded from the cars, "awaited further ing further conveyance' literally means conveyance,” within the meaning of the 11th 'awaiting the time when the next carrier clause, and while awaiting further convey shall take the property in hand, it seems ance the carrier was by the express terms improbable that it was the intent of the of that clause relieved from liability other language that the liability of the carrier wise than warehouseman. In other should terminate upon the deposit of the words, that the carrier upon the arrival of property upon the wharf. The language is the cotton and unloading it at the pier, and too indefinite to support the conclusion that without giving any notification of its arriv- notice to the connecting line was not a preal, ceased to be a carrier, and became liable requisite to the change of liability to that only for negligence which might cause the of a warehouseman. It may well be that loss of the property, and there being no neg. such change would take place when the ligence proved in this case, the carrier was property was awaiting conveyance by the not liable.
connecting line which had been notified to It was argued that clauses 3 and 12 were receive and convey, but until then it is not intended to cover such a case as would have awaiting conveyance; it is awaiting the acexisted in the one now before us had notice tion of the first carrier. The term must been given to the steamship company of the mean awaiting conveyance by the person up. arrival of the cotton at Westwego, such no- on whom the duty of conveyance devolved, tice being understood by the steamship com- and no such duty devolved until notice of pany as a request to come and take away the arrival of the property had been given.” the cotton; and in holding, as the court be We agree with the views of the court be low did, that notification was necessary below, as expressed by Judge Shipman. We fore the 11th clause could apply, that clause do not think that the property can be said was thereby deprived of any separate effect, to await further conveyance the moment it because after notification the 38 or the 12th is dragged upon the pier of the railway comclause would exempt the carrier, and there pany and unloaded from its cars, and before fore some further or other meaning must any notification is given to the steamship be given the 11th clause, so that it may company that the cotton has arrived and operate in a case where no other clause awaits transportation by ship. In one sense would be available.
it might be said that property awaited fur. Upon this subject Circuit Judge Shipman, ther conveyance if anywhere along the line in the court below, said:
of the railway company an engine of the * "It is not claimed that the facts bring train should break down, and the train be the carrier's liability within clause 3 of the brought to a standstill for several hours, bill of lading, which says that the liability awaiting a new engine. In such case the shall end after the property 'is ready for de cotton would not have arrived at the terlivery to the next carrier, for it is conceded mination of the road of the railway com. that the goods are not awaiting delivery be pany, and in one sense it would certainly fore notification of their arrival to the be awaiting further conveyance, because it connecting carrier. McKinney v Jewett, had not arrived at the end of the route; but 90 N. Y. 267. It is, however, insisted that no one would suppose for a moment that the fair construction of clause 11 is that, during the time that the train was thus at when the act of transportation of the cot- a standstill the 11th clause of the bill of ton to the wharf at Westwego has been ac- lading would be applicable. No court would complished, and it has been stacked on the give such a construction to the clause as wharf, and 'is awaiting further action in the would exempt the company under the cir. way of notification and advice to the succumstances stated. ceeding carrier,' it awaits further convey We are then to look for some fair and ance. By this construction the parties sub- reasonable meaning to be given to the term, stituted an immediate cessation of the lia- and we think that the court below has given bility of a carrier, and the assumption of such meaning to it. It cannot reasonably the liability of a warehouseman for the lia- be said that within the meaning of that bility imposed by the common law; and clause the property awaits further convey. doubtless they were at liberty to make a ance the moment it has been unloaded from contract of limitation which will be enforced the cars onto the pier of the defendant. As if the language of the bill of lading clearly' is stated by the circuit court, at that time
the property awaits the further action of rival has been given the consignee; and it the defendant, and does not await further seems to us that the same reasoning holds conveyance until it has become the duty of here, and that goods are not awaiting fur. the succeeding carrier to take it further, ther conveyance by a connecting carrier unafter notification that it has arrived and til the preceding carrier has given him noawaits delivery to it. After that time it tice of their existence at the place where may be said to await further conveyance, further conveyance is to be continued. We but up to that time it awaits the further do not dispute that there is a distinction action of the railway company:
between the position of goods awaiting deThis meaning of the clause is not altered livery and those awaiting further convey. even if the language used in other clauses ance; and the fact of such distinction is recmight also grant exemption upon the same ognized in Michigan C. R. Co. v. Mineral facts. We are not for that reason bound to Springs Mfg. Co. 16 Wall. 318, 327, 21 L. find some other and different meaning for ed. 297, 302, and it is therein stated that the 11th clause than such as we think is there is a clear distinction between propobvious and plain upon its face. The va erty in a state to be delivered free to the rious propositions mentioned in these differ- consignee on demand and property on its ent clauses and the many contingencies pro- way to a distant point to be taken thence vided for therein under which the company by a connecting carrier. In the former case might claim exemption render it not sur- it might be said to be awaiting delivery; in prising that the same ground of exemption the latter to be awaiting transportation. should possibly be covered by more than But the analogy between goods awaiting de one provision in the bill, or that, in other livery, at the end of the route and goods words, the defendant should upon the same awaiting further conveyance by a connectfacts be exempt under more than one of its ing carrier, so far as the requisite of novarious and perhaps somewhat indefinite tice in each case is concerned, we think exclauses. No rule of construction binds us ists, and should be recognized. to find some hidden or obscure meaning for There having been in this case no notificaa particular clause, because the simple and tion to the steamship company, without plain one which is seen upon its face pro- which clauses 3 and 12 do not apply, and vides for contingencies which may be also we being of the opinion that clause 11 has provided for in another clause of the same also no application without notification to bill.
the steamship company, it follows that the Reference was made in the opinion of the exemption claimed under the bill of lading court below, and also upon the argument in is not sustained; that the defendant at the this court, to the case of McKinney v. Jew- time of the fire was under obligation as a ett, 90 N. Y. 267, in relation to a delivery common carrier, and liable for the destrucof goods at the termination of the carriage, tion of the cotton, and that the judgment where the meaning of the phrase "awaiting in favor of the plaintiff below was right, delivery” was under considoration, the court and must be affirmed. holding that the phrase implied not only the arrival of the goods, but the completion of whatever on the part of the carrier is neces
(183 U. S. 632) sary to be done to leave the risk of further TEXAS & PACIFIC RAILWAY COM. delay upon the consignee; that the goods
PANY, Piff. in Err., were "awaiting delivery only after the duty of the common carrier is done, and he is entitled to remain passive awaiting the
JOHN R. CALLENDER et al. action of the consignee.
It was objected on the argument at the Carriers liability for loss of cotton by fire bar that the case was not in point because
--construction of bill of lading delivery of the distinction between awaiting deliv:
to succeeding carrier. ery and awaiting carriage, and it is urged 1. A carrier remains liable as at common law that this difference is substantial; that con
for a loss of cotton by fire while in its posveyance and delivery are different acts and
session, although it was "ready for delivery" relate to different parts of the service; that to the next carrier, or was awaiting further there could be no delivery to the consignee conveyance within the meaning of clauses in under the New York case until there had the bill of lading modifying its common-law been notice in some form to the consignee,
liability for the loss of goods under such while the element of notice had no connec
circumstances, where sucb bill of lading also
declares that "cotton is excepted from any tion with the act of conveyance of the cot
clause herein on the subject of fire, and the ton, which might be entirely complete re carrier shall be liable as at common law for gardless of notice. The two cases differ in loss or damage of cotton by fire," since this that the New York case, as counsel says, speciic clause takes effect to the exclusion of relates to a delivery at the end of the route, general clauses containing matters of general and the case at bar relates to goods await
exemption. ing conveyance by a connecting carrier; but 2. A rallroad company does not, by unloading in both the question arises as to the mean.
cotton on a pier under its sole and absolute
control and possession and notifying a steam. ing of the term "await," and the New York
shlp company, the succeeding carrier, of its case holds that goods do not await delivery
arrival, dellver the cotton "to the steamship within the meaning of that term as used in company or on the steamship pler," within the bill of lading, until notice of their ar the meaning of a clause in the bill of lading
22 S. C.-17.
providing that its liability shall terminate jury upon the question whether the cotton on such delivery, even assuming that such was awaiting further conveyance at the pler was the place agreed upon between the time of its destruction, and also upon the delivery of cotton to be thereafter carried question of whether the cotton had been de by the steamship company, where the rail- | livered to the steamship company, and also road company still continues to retain full upon the whole case. The request was recontrol of the cotton, and could, under cer- fused. The clauses of the bill of lading to tain contingencies, and at any time before which reference is made are the following: delivery to the steamship, send the cotton by “1. No carrier or party in possession of another steamer, and by agreement between all or any of the property herein described the parties the steamship company was not to shall be liable for any loss thereof or dam. take the property until it sent a steamer to the pier for that purpose.
age thereto by causes beyond its control;
or for loss or damage to property [No. 78.]
of any kind at any place occurring by fire,
or from any cause except the negligence of Argued December 3, 1901. Decided Janu- the carrier.” ary 13, 1902.
"3. No carrier shall be liable for loss or
damage not occurring on its own road or its IN 'N ERROR to the Circuit Court of Ap- portion of the through route, nor after said
peals for the Second Circuit to review a property is ready for delivery to the next judgment which affirmed a judgment of the carrier or to consignee. Circuit Court for the Southern District of
"4. . . Cotton is excepted from any New York entered upon a directed verdict clause herein on the subject of fire, and the in favor of plaintiff in an action to recover carrier shall be liable as at common law the value of cotton destroyed by fire. Af- for loss or damage of cotton by fire. firmed. See same case below, 39 C. C. A. 154, 98
“11. No carrier shall be liable for delay, Fed. 538.
nor in any other respect than as warehouse The facts are stated in the opinion. men, while the said property awaits further
Messrs. Arthur H. Masten and Rush conveyance, and in case the whole or any Taggart for plaintiff in error.
part of the property specified herein be pre Il essrs. Treadwell Cleveland, George vented by any cause from going from said Richards, and Frederick E. Mygatt for de port in the first steamer of the ocean line fendants in error.
above stated leaving after the arrival of
such property at said port, the carrier here *Mr. Justice Peckham delivered the opin- under then in possession is at liberty to forion of the court:
ward said property by succeeding steamer This action was brought by the defend of said line, or, if deemed necessary, by any ants in error, who are aliens, in the circuit other steamer. court of the United States for the southern "12. This contract is executed and accom. district of New York, to recover the value plished, and all liability hereunder termi. of 187 bales of cotton destroyed in the same nates, on the delivery of the said property fire at Westwego, Louisiana, November 12, to the steamship, her master, agent, or serv1894, mentioned in the immediately preced- ants, or to the steamship company, or on ing case. As in that case, the defense here the steamship pier at the said port, and the is based upon certain clauses of the bill of inland freight charges shall be a first lien, lading providing exemption from common- due and payable by the steamship como law liability in the contingencies mentioned. pany." There was a verdict for the plaintiffs by the * The claim of the railway company is that direction of the court, and the judgment the language of the 4th clause in the bill of entered thereon having been affirmed in the lading, which excepts cotton from any circuit court of appeals (39 C. C. A. 154, 98 clause therein on the subject of fire, and Fed. 538), the railway company has which renders the carrier liable as at com. brought the case here by writ of error. mon law for loss or damage by fire, is lim.
The facts as to the manner of doing busi- ited in its application to those clauses in ness at Westwego are the same as those the bill of lading which speak of fire, and stated in the foregoing case, and also in the that the common-law liability of the com. Clayton Case, 173 U. S. 348, 43 L. ed. 725, pany existing under the 4th clause is sub19 Sup. Ct. Rep. 421. The cotton arrived ject to the provisions of the other clauses at Westwego between October 17 and 29, mentioned in the bill, which provide for ex. and had been so placed on the pier that it emption or reduction of liability under the was only necessary for the steamship com- facts stated in them. In other words, that pany to send a ship there and take the cot- if the company might otherwise be liable ton when pointed out to its master or other for the loss of cotton by fire by reason of the officer. In this case there had been sent a 4th clause, yet, if at the time of the loss the notification to the steamship company, by property was ready for delivery, although means of the “transfer sheets" mentioned not delivered, to the next carrier, as provid. in the statement of facts in the other case, ed for in clause 3, or if it awaited further of the arrival of the cotton as early as No. conveyance, though not actually delivered to vember 2, for most of it, and for a few bales the connecting carrier, as stated in clause as late as November 10. After the evidence 11, that then it would be exempted under was in, the defendant requested to go to the 'the 3d or its liability reduced under the
11th clause of the bill of lading, and the contained in the bill of lading, it is further plaintiff could not therefore recover, on the provided that "the carrier shall be liable as proof in this case. Of course if under the at common law for loss or damage of cotton 12th clause the property had actually been by fire.” The whole is a special and specific delivered to the succeeding carrier, its de provision which applies to cotton alone and struction by fire thereafter would not ren to the loss of cotton by fire. The other pro der the preceding carrier liable for that visions apply, generally to all property, loss.
whatever its character and wherever taken. The measure of the common-law liability In other words, these other clauses are of a between connecting carriers is stated in the general nature, while the 4th clause refers opinion in the preceding case and the cases to cotton alone, and to the specific cause of therein referred to, and need not be here re the loss, viz., by fire. We are of opinion peated.
that the specific clause takes effect to the Now what is the true construction of the exclusion of the general clauses containing 4th clause? In relation to that it was stat- matters of general exemption, and that ed by Judge Shipman, in delivering the therefore the carrier remains liable as at opinion of the circuit court of appeals here common law for a loss of cotton by fire in, as follows:
while in the possession of the carrier, al"The principal question in the case is up- though it was ready for delivery to the next on the proper construction of the sentence carrier within the meaning of the 3d clause, in clause 4 in relation to the liability of the or was awaiting further conveyance within defendant for loss of cotton by fire. The the meaning of the 11th clause; but that if bill of lading was prepared for a contract it had been actually delivered before the in regard to property of any kind, and in loss, the railway company would not have clause 1 the carrier was exempted from lia- been responsible therefor. The defendant's bility from loss by fire except through his claim, if allowed, would leave the shipper negligence. The part of the sentence in without recourse for loss by fire after the clause 4, 'Cotton is excepted from any clause notification had been given to the steamship herein on the subject of fire,' probably re-coinpany and before the delivery of the cotfers only to clauses wherein fire is men- ton had been made to it, because the railway tioned; but the concluding part of the sen company would be under no liability for the tence, 'and the carrier shall be liable as at loss of the cotton by fire, excepting by reacommon law for loss or damage of cotton son of its own negligence, and the insurance by fire,' has a wider sweep, and means that of the cotton, while in the possession of the the carrier, notwithstanding limitations of steamship, company, would not attach, and its common-law liability which are provided so the shipper would be without any adein the bill of lading, retains such liability quate protection during that time. True, in regard to danage to cotton by fire. The he might obtain special insurance during clause as a hole intended to leave and did this intermediate period, but it would adă leave unaltered the implied liability of the to the expense of the transit which under carrier for loss to cotton by fire. The limi. the terms of the bill he would naturally not tations which the parties did permit were feel called upon to make, and it would be contained in clauses 3 and 11, which said inconvenient and troublesome to do it, and that the carrier should not be liable for the court ought not to unduly limit the damage after a readiness to deliver, or plain language of the clause for the purpose otherwise than as a warehouseman after of thereby enabling the company to escape the property waited further conveyance. a liability cast upon it by the common law, Whatever may be the extent of these limi. and which it voluntarily assumed. tations, they were to a certain degree modi. As cotton was the subject of the special fications of the common-law liability of the provision, its language should be given full first carrier, but its liability at common law sway, and should not be curtailed by other for loss to cotton by fire remained intact. provisions in other clauses of a general naThe request of the defendant to go to the ture referring to all kinds of property. jury upon the question of delivery of the We are also of opinion that there was cotton was properly refused. There was no nothing to go to the jury upon the question evidence of a delivery. The cotton was of a delivery of this cotton to the steamship never in the actual or constructive posses. company under the 12th clause of the bill sion of either of the steamship. companies, of lading... It may be assumed that the pier and neither was ready to take it from the of the railway company was the place undefendant's possession; and therefore clause derstood and agreed upon between that 12 has no bearing upon the question of the company and the steamship, company to defendant's liability."
make delivery, when it was made, of the cotWe think this view of the circuit court ton to be thereafter carried by the steamof appeals is the correct one, and that under ship company; but upon the uncontradicted the wording of the 4th clause in the bill of evidence in this case we are of opinion that lading the defendant was properly held lia- the simple arrival of the cotton at the pier, ble. The first part of that clause in terms and notice thereof given to the steamship takes cotton out of any clause on the sub-company by means of the "transfer sheets" ject of fire, and as if such language might spoken of in the other case, did not in and possibly render it doubtful as to what the of itself amount to a delivery of the cotton status of cotton would be by merely except to the steamship company, constructive or ing it from any clause on the subject of fire' otherwise. Nor was it a delivery on the
steamship's pier, as between the shipper and it or within reach of its tackle by the rail. the railway company, within the language way employees, depending upon where the of clause 12, and for the reasons herein cotton was, and how far away from the stated the notice to the steamship company ship; and it was understood between the did not relieve the railway carrier from lia- steamship and railway companies that the bility.
railway company would get out the cotton The uncontradicted evidence shows that when necessary to do it, and by getting out the cotton came to the railway pier under the cotton was meant dragging it from these circumstances: The pier was built where it was stored on the wharf out in by the railway company, and was in its sole front or near enough in front to enable the and absolute control and possession. Not a steamship people to get it without having bale of cotton could be taken from it with to go around through the bales of cotton. out the action of that company; its own The connection of the steamship compawatchmen were in charge of the pier at all nies with the transportation of the cotton times, and when a steamship came to the was the subject of special contracts between pier it was only under a permit or an order those companies and the railway company. from an officer of the railway company that The initiation would be an agreement be the cotton was taken. It was pointed out tween a steamship company and the railway by the servants of the railway company, company for a certain charge for freight and, within the custom of the port of New across the ocean for a stated amount of cotOrleans, it had to be brought within the ton from New Orleans to Liverpool or Bre reach of the ship's tackle before the ship men, or whatever other foreign port it was called upon to take it. The expression might be, and no particular cotton was "ship’s tackle” means “where the ship's specified. Having obtained this agreement ropes can get onto it so that the ship's as to price and number of bales, the rail. winches can pull the cotton in.” The cus- way company would then agree with the tom was that after a steamship company re shipper in Texas for a through rate from turned the transfer sheets which had been the point in Texas at which the cotton was sent it by the railway company, an order to be taken to the port abroad, and it would was made out by the railway officials on the then give a bill of lading such as was given Westwego office of the defendant to deliver in evidence in this case, providing for the to the steamship company's agents such through rate and the liabilities of the varicotton as was ordered. It does not appear ous carriers by rail and by sea; but it was that any such order was given. Prior to only after an arrangement had been made the time of the arrival of the vessel which and a contract entered into between the rail. was to take the cotton and the arrival of way and a steamship company that the latthe stevedores, the steamship company had ter company would send a steamer to the no charge of any of the cotton on the pier. Westwego pier. The evidence is uncontraThere was no particular spot on the pier at dicted in regard to what the steamship which, if cotton were there deposited, it lines had to do under the agreements they was understood between defendant and the had with the defendant; in some cases they steamship companies to have been deposited were not under any obligation to come to in the care, control, or possession of any of the pier unless the defendant had at least such companies; but, on the contrary, the 1,500 or 2,000 bales of cotton ready for whole pier was covered by cotton destined them, while in another case the steamship indiscriminately for transportation to dif. company which had a contract to take 20,ferent European ports by different lines of 000 bales of cotton from the railway comsteamers, not one of which could take a pany was not to be called on to go to the bale of cotton away without the order of the wharf unless there were at least 500 bales railway company,
ready to deliver to it, and by the bill of lad. Before the ship took the cotton it gave ing the railway company might, under cera mate's receipt for it, although sometimes tain contingencies, if it deemed necessary, the receipt would not come as soon as that, forward the cotton by some steamer of an. and the cotton would be delivered before the other line than that mentioned in the bill. receipt was given. The cotton which came The steamship companies took their own in on the cars of the defendant was placed time in coming to the Westwego pier for all along the pier, and that which was des. the cotton. If they had no special contract tined for any particular company had to with the railway company, they did not be pointed out and selected from a large come at all. It was not the case of a regumass of cotton on the pier. The railway lar delivery by the railway company to a company had contracts with various steam- connecting carrier at the pier of the latter. ship companies ;with the West India & Now upon these facts we regard it as enPacific, the French line, the lines for which tirely clear that at the time this cotton was Miller & Company were agents, the Ham- lost there had been no delivery, actual or burg-American line, and some others;—and constructive, to the steamship company, so the cotton for all these various lines was as to devest the defendant of its common-law unloaded upon this pier of the railway com- liability for the loss of this cotton. pany, and was distributed all over the Within clause 12 of this bill of lading wharf, so that when a steamship came to the there was no delivery of the property by dock upon which the cotton was, that which the defendant, either to the steamship, her was intended for the particular steamship master, agents, or servants, or to the steamthen at the pier would be brought out to ship company, or on the steamship com