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been stolen from the warehouse."^ ^ Where freight had been landed on the
wharf, and the consignees were notified of its arrival, paid the freight, and re-
moved part of the goods, the carrier's responsibility was terminated, and any
obligation that remained with reference to goods not removed was that of a
warehouseman or wdiarfinger."^^ And where a vessel is detained, after the ex-
piration of time for unloading , by the act of the consignee, she is liable
as a warehouseman only.^*^ Where, by the provision of a bill of lading, merchan-
dise is to be delivered "from the ship's tackles where the ship's responsibility
shall cease," her liability, after the goods are discharged, is that of a bailee,
charged with the duty to take ordinary care of the property for a reasonable
length of time, and not to abandon it, or negligently expose it to injury. ^i \\'here
a bill of lading provided that, on arriving at destination, the master should hold
the cargo for a specified number of days or less and to receive therefor a speci-
fied sum, it was held that the carrier's liability as a carrier ceased on the arrival
of the boat with its cargo in good order and ready for delivery on notice of ar-
rival to the consignee and his election not to remove the cargo. ^2

76. Liability as warehouseman. — See negligence in failing to exercise reason-
ante. "Carrier as Warehouseman," Chap- able care in selecting a safe place to un-
ter, 13; post, "Negligence in Discharging load. Rosenstein v. Vogemann, 184 N.
or in Caring for Goods after Discharge," Y. 325, 77 N. E. 625, affirming 92 N. Y.
§ 4306. S. 86, 102 App. Div. 39.

77. Reasonable time after notice. — See 78. Evans v. New York, etc.. Steamship
ante. "Express Companies and General Co., 163 Eed. 405.

Carriers l)y Water," § 1093. 79, Payment of freight and removal
Where a carrier did not give proper of part of goods.— Stone v. Clyde Steam-
notice to the consignee to appear and ^\^\^ Co., 130 N. C. 193, 51 S. E. 894.
lake charge of the freight, and allow rea- ^^ ^^^^^^ detained by consignee.-The
sona1,le time thereafter for hmi to do so, j^ ^ ^^^^^-^ ^30 Ped. 12,5.
I)ut unloaded the freight upon a pier, r, • , -^ ■ ■ c^ 1 • ^ ^r...
which collapsed, so as to injure the_ goods, 81. Smith v. Britain Steamship Co., 123.
the carrier was liable, irrespective of Fed. 176.
the question whether it was guilty of 82. Putnam v. l^irnam, 71 N. Y. 590.



§§ 4278-4280 carriers. 3888

§§ 4278-4288. Duties and Liabilities as to Transportation and De-
livery — § 4278. In General. — See ante, "Duties as to Transportation in Gen-
eral," § 812.

Duty to Carry in Vessel Specified in Contract. — The contract of af-
freightment obliges the carrier, in the absence of a legal excuse, to carry the
freight to the destined port in the very vessel stipulated in the bill of lading; ■'*^
and it is no defense, in an action for breach of the contract, that the shipowners
offered to carr^' the goods on another vessel at no additional risk or cost/^*

§ 4279. Loading Goods. — Time for Loading-. — Where a charter party
fixes no time for the loading by the shipper to begin or end, the law will pre-
sume that a reasonable time under all the circumstances known to the parties or
presumed to have been within their contemplation was intended, and a provi-
sion for such reasonable time will be considered as agreed to by the parties.^-'*

Consignment of Vessel to Third Person for Loading. — In the absence of
some agreement to the contrary between owner and charterer or some evi-
dence showing a contrary intent, the party who is to load the vessel will be
deemed the agent of the charterer, and, when the charterer consigns the vessel-
to another for loading, it makes itself responsible for the acts or omissions of
such consignee the same as though it had directed the vessel consigned to itself
at the same place. ^^

Liability for Overestimating Amount Loaded. — Vessel owners can not
be held liable to a shipper for the amount of an overpayment made by him to
miners for a cargo of stone furnished him for loading the vessel because the
master overestimated the amount loaded and the shipper accepted his estimate
as the basis for making such payment, where it does not appear that the master
acted fraudulently.^"^

§§ 4280-4281. Deviation and Delay— § 4280. Deviation.— It is the

duty of the owner of a vessel receiving a cargo for transportation to proceed
without unnecessary deviation in the course, agreed upon in the contract,^^
or if none be designated, in the customary and usual route to the port of de-
livery.^^ In every contract of affreightment, unless otherwise expressly pro-
vided, the carrier's undertaking is that he will diligently carry the goods on the
agreed voyage without any unnecessary deviation.^^ So, if a carrier would se-
cure the right to deviate from the usual course he should stipulate for it in the
bill of lading.91 The words "with liberty * * * to make deviation," in a
bill of lading, give the carrier the right to make only such departures from the
voyage as are necessary and reasonable.^^ Where the vessel is destined for
several ports and places, the master should proceed to them in the order in which

83. Duty to carry in vessel specified in Receipt for goods designating route.—
contract.— Harrison v. Steward. Fed. Cas. A receipt for goods "for Baltimore, via
No. 6,145. Taney 485; Cox v. Foscue, 37 Chesapeake «& Delaware Canal," is a con-
Ala. 505, 79 Am. Dec. 69; Louisville, etc., tract to carry the goods through that
Packet Co. v. Rogers, 20 Ind. App. 594, canal to Baltimore. Hand v. Baynes
49 N. E. 970. See ante, "Duties as to (Pa.), 4 Whart. 204, 33 Am. Dec. 54.
Transportation in General," § 812; post, 89. Customary and usual route.— Pro-
"Transshipping and Forwarding," § 4288. peller Niagara v. Cordes (U. S.). 21 How.

84. Harrison v. Steward, Fed. Cas. No. 7. 16 L. Ed. 41; The Maggie Hammond
6,145, Taney 485. (U. S.), 9 Wall. 435, 19 L. Ed. 77.2; The

85. Time for loading.— Peck v. United Citta Di Messina, 169 Fed. 472; The In-
states, 152 Fed. 524. drapura, 171 Fed. 929; Powers v. Daven-

86. Consignment of vessel to third per- port (Ind.), 7 Blackf. 497, 43 Am. Dec.
son for unloading. — Peck v. United 100.

States, 152 Fed. 524. 90. Globe Nav. Co. v. Russ Lumber,

87. Overestimating amount loaded. — etc., Co., 167 Fed. 228.

Barber v. Vlasto, 104 Fed. 101. 91. Lawrence v. McGregor (O.), Wright

88. Deviation — Duty to proceed upon 193.

agreed course. — The Indrapura, 171 Fed. 92. Swift & Co. v. Furness, etc., Co.,.

929. 87 Fed. 345.



3889



carriage: of property.



§ 4280



they are usually visited, or that designed by the contract, or, in certain cases, by
the advertisement relating to the particular voyage. ^^

What Constitutes Deviation. — "Deviation" is defined, generally speakings
to be a voluntary departure without necessity or reasonable cause from the regu-
lar and usual course of the voyage. ^^ It means a departure from the usual course
of the voyage, or from the usual manner of prosecuting it.^P Whether there
has been a deviation is, upon conceded facts, a question for the court. ^^ For
a vessel after arriving at the port of delivery to return to the port of shipment,
and thence make a second voyage to the port of delivery, is not a deviation. ^'^
An alteration of a voyage requiring the vessel to proceed by sea instead of
through a canal,^^ |-|-,e placing of a vessel in dry dock after she had received
:argo on board for the voyage, for the purpose of painting her bottom when
that was not a maritime necessity ,^9 or for a steamer to take in tow a four-
masted schooner belonging to the same owners, ^ constitutes a deviation. Where
it appeared that the usual route of vessels from between two points was through
Long Island Sound in summer and winter, that in a certain winter the naviga-
tion of the sound was obstructed by .ice for a longer period than usual, and that
in February, during that period, a vessel departed from such usual route, and
performed her voyage in the open sea, on the south side of Long Island, it
was held, that this was a deviation, without reasonable necessity.^ Where
goods were consigned from Savannah to a port of Spain, under bill of lading
reciting that the vessel was bound for that port, and the vessel went first, without
necessity or reasonable cause, to a port in Italy not in the usual course of vessels
bound from Savannah to the Spanish port, thus subjecting the goods, when
delivered at that port, to an extra duty under the law of Spain, this was such a
deviation as would authorize the consignors to recover in an action against the
owner of the ship for loss thus occasioned.^



93. Vessel destined for several ports.

— Propeller Niagara v. Cordes (U. S.), 21
How. 7, 16 L. Ed. 41.

94. What constitutes deviation. — Pacific
Coast Co. V. Yukon Independent Transp.
Co., 83 C. C. A. 625, 155 Fed. 29; Hostet-
ter V. Park, 137 U. S. 30, 34 L. Ed. 568,
11 S. Ct. 1.

95. Globe Nav. Co. v. Russ Lumber,
etc., Co., 167 Fed. 228.

96. Question for court. — Crosby v.
Fitch, 12 Conn. 410, 31 Am. Dec. 745.

97. Pacific Coast Co. v. Yukon Inde-
pendent Transp. Co., 83 C. C. A. 625, 155
Fed. 29.

Breach of contract of affreightment —
Provision for deviation. — Libelant con-
tracted with respondent for the carriage
of goods from Seattle to St. Michaels,
Alaska. It was fully understood that
libelant intended to market the goods
along the Yukon river as soon as the
ice went out, and that it had a vessel
awaiting at St. Michaels for the purpose.
It was agreed that the goods should be
taken on the first trip of respondent's
vessel north, and should be delivered as
soon as the ice was out of the harbor
at St. Michaels, which was known to be
usually about the 1st of July. Libelant
refused to ship without such agreement.
The bills of lading, which were issued
after the cargo was on board, provided
that in case the vessel should be pre-
vented by stress of weather or otherwise



from entering the port of delivery, the
carrier might convey the property to the
nearest or other port, and thence return
it to the port of delivery by the same
or other vessel, subject to the contract
for the original voyage and at the risk
of the owner. The vessel reached St.
Michaels June 20th, and, finding the
harbor filled with ice, returned to Nome,
and there tendered delivery at ship's
tackle, which being refused she returned
to Seattle, and delivered the goods at St.
Michaels on her next trip on July 19th.
The ice went out of the harber about
July 1st. Held, that the vessel was
boimd by the contract of affreightment to
wait until the ice went out or to transship
the goods at Nome to be delivered at St.
Michaels as soon as the harbor was free,
at her own expense, and that she was lia-
ble for the damages caused by her breach
of contract. Pacific Coast Co. v. Yukon
Independent Transp. Co., 155 Fed. 29,
83 C. C. A. 625.

98. Going by sea instead of canal. —
Hand v. Baynes (Pa.), 4 Whart. 204, 33
Am. Dec. 54.

99. Placing vessel in dry dock. — The
Indrapura, 171 Fed. 929.

1. Taking vessel in tow. — Globe Nav.
Co. V. Russ Lumber, etc., Co., 167 Fed.
228.

2. Crosby v. Fitch, 12 Conn. 410, 31
Am. Dec. 745.

3. Robinson v. Hoist, 96 Ga. 19, 23
S. E. 76.



§§ 4280-4281



CARRIERS.



3890



Excuses for Deviation. — A deviation from the direct route may be excusa-
ble if rendered necessary to execute repairs for the preservation of the ship,
or the prosecution of the voyage, or to avoid a storm, or an enemy, or pirates,
for the purpose of obtaining necessary supplies, or for the purpose of assisting
another vessel in distress.* But an ordinary or temporary obstruction of the
prescribed route will not justify a deviation therefrom.^

Deviation Usual or Customary. — See ante, "Necessity and Justification,"
§ 833.

Delay as Deviation. — Delay of a vessel, even upon the route prescribed by
a policy or bill of lading, may amount to deviation.^'

§ 4281. Delay." — It is the duty of the carrier by water receiving a cargo
for transportation, in the absence of any stipulation as to the period of sailing,
to commence the voyage within a reasonable time, without delay, and as soon as
the wind, weather, and tide will permit,^ proceed without unnecessary delay,^
and transport the goods within a reasonable time to the point of destination.^"
And where shipowners fail to deliver cargo within the time reasonably neces-
sary to make the voyage, and the delay is not due to stress of weather or any of
the causes for which they do not assume liability, they are liable to the shipper
for losses resulting to him from such delay, although no time for delivery was
fixed by the bill of lading.^^ A steamship line is liable for damages suffered by
the owner of goods through a fall in price while delivery was delayed, owing to
a failure of the company to forward the goods on the vessel to which they were
constructively delivered and which issued bills of lading.^-

Excuses for Delay. — The carrier is not responsible for delay in the voyage
on account of boisterous weather or adverse winds, low tides, or the like, un-



4. Excuses for deviation. — Propeller
Niagara v. Cordes (U. S.). 21 How. 7. 16
L. Ed. 41; The Maggie Hammond (U.
S.), 9 Wall. 435, 19 L. Ed. 772.

5. Ordinary or temporary obstruction.
—Hand v. Baynes (Pa.), 4 Whart. 204,
33 Am. Dec. 54.

6. Delay as deviation. — The Citta Di
Messina, 169 Fed. 472.

Delay not constituting deviation. — Un-
der bills of lading which recited that the
vessel was bound for New York, "but
with liberty to the steamer either before
or after proceeding towards that port to
proceed to and stay at any port or places
whatsoever, although in a contrary direc-
tion to or out of or beyond the route to
the said port of discharge once or oftener
in any order, backwards or forwards for
loading or discharging cargo or passen-
gers or for any purpose whatsoever," the
stopping of the vessel at the next port of
call for 13 days awaiting cargo of which
she obtained but a small part did not con-
stitute a deviation. The Citta Di Mes-
sina, 169 Fed. 472.

7. Delay in transportation or delivery.
— See ante, "Delay in Transportation or
Delivery," Chapter 11.

8. Time of sailing. — The Maggie Ham-
mond (U. S.). 9 Wall. 435, 19 L. Ed. 772;
Propeller Niagara v. Cordes (U. S.), 21
How. 7, 16 L. Ed. 41. See Philadelphia,
etc., R. Co. V. Peale, 135 Fed. 606.

9. The Indrapura, 171 Fed. 929.



10. Transportation to destination within
reasonable time. — The Delaware (U. S.),
14 Wall. 579, 20 L. Ed. 779; Commander-
in-Chief (U. S.), 1 Wall. 43, 17 L. Ed.
609: The Gordon Campbell, 141 Fed. 435.

11. Where no time agreed upon. — The
Prussia, ino Fed. 484.

Proper estimate of delay. — On a libel
for damages for unreasonable delay in
transporting horses to Alaska during the
Klondike rush of 1898, the evidence
showed that a horse was worth $20 a
day during the period of delay. It further
showed that the horses were put on
board the vessel on February 22d, that
the vessel did not sail until February 24th,
that it stopped two days on the wa3% tliat
it arrived at its destination on March 6th,
that the horses were not discharged until
March 9th, and that, owing to a further
delay in unloading their equipment, they
were not available for service until March
14th. This delay was caused by using a
lighter which was used, notwithstanding
the payment of wharfage by the shipper
in advance in order that there should be
no such delay. Held, that an estimate of
damages on the basis of 10 days' delay
was reasonable, and an award of damages
on such basis was not excessive. La Con-
ner, etc., Transp. Co. v. Widmer, 136 Fed.
177, 69 C. C. A. 193.

12. Failure to forward goods on vessel
to which they were delivered. — The Gut-
enfels, 166 Fed. 989, decree affirmed in 170
Fed. 937.



3891



CARRIAGE OF PROPERTY.



§ 4281



less it could be avoided by the use of proper precautionary measures. ^^ The
carrier is liable for failure to promptly deliver a cargo unless prevented by
stress of weather, endangering the safety of the cargo, or preventing further
progress. Exposure to inclement weather, or fear of encountering ice or cold,
constitutes no excuse. ^^ While it may be the duty of a common carrier receiv-
ing freight for transportation by rail and beyond the seas ordinarily to provide
for the clearance of the vessel in which the goods are to be shipped, the shipper
can not complain of failure to obtain such clearance when it is prevented by the
nature of the shipment.^ ^

Delay in discharging through default of the vessel does not entitle the char-
terer or consignee to damages, in the absence of a contract for delivery by a
particular day, but simply extends the time within which the discharge may be
made Avithout liability of the charterer or consignee for demurrage.^*' Of course,
if a vessel having agreed to load or discharge a cargo on a certain day, fails to
do so, the usual consequences of a breach of contract may be recovered. ^'^

Waiver of Right to Damages. — Where the owner of a cargo has means of
information that the ship has become unfit for navigation, and of the opportuni-
ties for repairs, and of the probable delay, he may be estopped by his acts or
acquiescence from claiming damages to the market value of the goods arising
from such delay. ^'^ Where the carrier after agreeing to furnish a vessel to trans-
port a cargo of lumber, but without any definite contract as to time, was delayed
in procuring a vessel, but the owner, having failed to secure one elsewhere, ac-
cepted the carrier's when tendered, the carrier can not be held liable for ex-
penses incurred in consequence of the delay. ^^

Failure to Show Contract of Carriage. — Where it is not shown that a ves-
sel undertook the carriage of goods, an action in rem will not lie against her for
'delav in their transportation caused by being sent on another vessel.-" A com-



13. Excuses for delay. — Clark z\ Barn-
well (U. S.), 12 How. 272, 13 L. Ed. 985.

14. Holland v. 725 Tons of Coal. 36 Fed.
784: Philadelphia, etc., R. Co. v. Peale, 135
Fed. 606.

A barge laden with coal started on a
voyage from Philadelphia to Boston in
tow of a powerful steamship at a time
when there was floating ice in the Dela-
ware river. Two or three miles down the
river, heavier ice was encountered; and
in the first, unsuccessful, attempt of the
steamship to force her way through, the
barge was injured, making it necessary
for her to stop for repairs. The steam-
ship then successfully passed through the
ice, and proceeded alone. Held, under
the evidence, that the condition of the
river was not such as to render the barge
negligent in starting, in view of the size
and strength of the vessels; it being her
duty to make every reasonable effort to
deliver the cargo promptly. Philadelphia,
etc., R. Co.. V. Peale, 135 Fed. 606.

15. Nature of shipment. — Farmers,'
€tc., Trust Co. V. Northern Pac. R. Co.,
112 Fed. 829, reversed in 120 Fed. 873,
57 C. C. A. 533, which is affirmed in
Northern Pac. R. Co. v. American Trad-
ing Co., 25 S. Ct. 84, 195 U. S. 439, 49 L.
Ed. 269, on the ground that the carrier
was negligent.

16. Delay in discharging. — Milburn v.

4 Car— .-)0



Federal Sugar Refin. Co., 161 Fed. 717,
reversing The Heathdene, 155 Fed. 368.

17. Milburn v. Federal Sugar Refin. Co.,
161 Fed. 717, citing Petrie v. Heller, 35
Fed. 310.

18. Waiver of right to damages. — The
Strathdon, 89 Fed. 374.

The ship was delayed necessarily for
six months for repairs, during which time
the cargo owners and underwriters, to
whom abandonment was made, although
fully apprised of the condition of the ship,
made no demand for the transshipment
and forwarding of the sound portion of
the cargo, and the cargo owners appar-
ently acquiesced in the delivery of the
goods by the ship, while the underwriters
simply stated that they should hold the
ship responsible for the delay, but de-
clined all propositions of the carrier for
expediting the delivery. Held, that the
cargo owners, or their successors in ti-
tle, were not entitled to recover damages
for decline in the market value of such
cargo on account of the alleged unrea-
sonable delay in delivery. The Strathdon,
89 Fed. 374.

19. Murray t'. Juni]) Co., 118 bVd. 123.

20. Failure to show contract of carriage.
— The agent at Barcelona of tlie owners
of the B. contracted to carry goods from
there to New York via Marseilles. The
bill of lading provided for the carriage of
tlic goods by tlie B., or, at the carrier's



§§ 4281-4283 carriers. 3892

plaint alleging that after a breach by defendant of a contract to transport plain-
tiff's property on defendant's vessel "it was then and there agreed" that de-
fendant would transport the property on the same terms on a following vessel, not
alleged to have been owned or controlled by defendant, and that such vessel
would reach the port of destination "at substantially the same time" as defend-
ant's ; but that by reason of delays it did not arrive until several days later than
defendant's vessel whereby plaintiff was damaged, does not state a cause of
action, there being no contract nor consideration alleged which would render
defendant responsible for the delay complained of.^^

§§ 4232-4283. Failure or Refusal to Deliver— § 4282. In General.—

The duty of the carrier is not merely to safely carry the goods intrusted to it,
but also to deliver them, or do what is equivalent thereto. ^^ Where a vessel
f'tranded on a voyage near her port of delivery, and on being released some days
later started back with the intention of delivering the cargo back to the consign-
ors, in violation of the contract of carriage, the consignees were entitled to sue
the vessel in admiralty to recover the cargo and damages for its nondelivery. ^^

Excuse for Nondelivery in General. ^4 — Though generally a bailee may not
set up title in a third party in an action by the bailor, in an action against a mas-
ter of a vessel for failing to deliver goods, he may show that the goods belong
to a third party who has forbidden delivery. ^^ And a shipper can not demand
the delivery of his goods, if the landing of them would expose the vessel to
seizure. 2^ Where a suit against a common carrier by water for nondelivery of
certain goods was not brought until two years after the defendant had received
them, it was no defense that the river on which the goods were to be carried was
for four months after they were received too low for the navigation of defend-
?nt's boat.-"

Requiring Proof of Right to Goods. — See ante, "Requiring Proof of Right
to Goods," § 839.

Detention for Debt or Charges. — See ante, "Detention for Debt or
Charges," § 841. A carrier, refusing to deliver freight without payment of de-
murrage not due, is liable for a conversion. ^^

§ 4283. Short Delivery. — Where a certain number of cases of goods are
laden on board of a vessel in good order, they are thereafter until delivery, at
the ship's risk with respect to contents, and she is liable for a deficiency, in the
absence of a valid exception in the bill of lading.-^ But the carrier is not liable
for the shrinkage of the cargo owing to the inherent nature and quality of the
goods. ^*^ The receipt of a specified number of packages by the master makes

option, by another ship. It recited the 23. The Eva D. Rose, 153 Fed. 912,

name of the captain of the B., but the modifying decree, 151 Fed. 704.

signature thereto was illegible, and bore 24. Excuse for nondelivery in general

no satisfactory resemblance to his name. _See ante, "Excuse for Nondelivery in

The B. was not at Barcelona at that time General," § 837.

nor thereafter. The goods were carried 25. That goods belonged to another.

by another vessel, which sailed from Mar- Hayden v Davis 9 Cal 573

seilles 19 days after the B. sailed from ^^ y^^^^ exposed to seizure'.-Monte-

that port. Held that a hbel in rem for ^^^ ^, ^-^ /^^ ^^^^

damages from the delay would not he ^^ Wallace v. Vigus (Ind.), 4 Blackf.

agamst the B., even m favor of a bona orQ

fide purchaser of the bill of lading, as '^'^^ Detention for demurrage not due.

there was nqthmg on its face to indicate _Barker-Bond Lumber Co. t; Pennsylva-

to one exercising care, that it was signed ^-^ ^ ^ ^3^ j^_ y. S. 624, 74 Misc.

by her captain. The Britannia, S7 Fed. v ^ ro

495. ^^P- "^•



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