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21. Johanson t/. Sondheim, 145 Fed. 620, ^ ^9. Short delivery.— The Seneca, 163
76 C. C. A. 310. Fed. 591.

22. Liability for failure or refusal to de- 30. Shrinkage due to inherent nature
liver. — See ante, "Duty and Necessity of of goods. — Janney v. Tudor Co., 3 Fed.
Delivery," § 835; "Liability for Failure 814. See Glasgow Steam Shipping Co. v.
or Refusal to Deliver," §§ 836-841. Tweedle Trading Co., 154 Fed. 84.



3893



CARRIAGE) OF PROPERTY.



§§ 4283-4284



.1 ijrima facie case against the ship where a smaller number is delivered ;3i but
the ship will be discharged if he is able to show that he delivered all that he
actually received.^-' Under a bill of lading providing that it should, in the ab-
sence of fraud or obvious error, be conclusive evidence against the carrier of the
quantity of cargo received, where the cargo was carefully tallied when received
on board, but the ship delivered less than the stated quantity, there was no "ob-
vious error" which will relieve her from liability for the shortage. ^^ Where
bills of lading for cargoes of phosphate specified the quantity, but contained the
further statements, "Weight and quantity unknown," or "Weight unknown,"
the burden rests upon the shipowners to account for any discrepancy between
I he quantity delivered and that specified; but this is met by proof that the full
quantity loaded was delivered, and this may be shown as against a consignee who
has paid drafts drawn by the shippers for the full quantity specified, where the
bills of lading were attached to the drafts.^^ The rule that a vessel is liable for
(^argo received, but not delivered, does not apply to a case where all the cargo
received was carried to the port of delivery, but a portion of it had been so dam-
aged on the voyage that it could not be identified.-*^^

§ 4284. Notice of Arrival of Goods. — It is indispensable that a consignee
should have notice of the arrival of the goods.^^ So the carrier is liable for the
destruction of goods from nonexempted causes after delivery upon its wharf at
destination, but before notice of arrival to the consignee.^" It is held that if the



31. Effect of receipt. — Bolton Steam
Shipping Co. v. Grossman, 206 Fed. 183;
James v. Standard Oil Co.. 189 Fed. 719,
decree affirmed in 191 Fed. 827.

32. Liable only for goods actually re-
ceived. — Dean v. King. 22 O. St. 118; Bol-
ton Steam Shipping Co. v. Crossman, 206
Fed. 183. See Planters' Fertilizer Mfg.
Co. V. Elder. 101 Fed. 1001, 42 C. C. A.
130; The Delaware (U. S.), 14 Wall. 579,
20 L. Ed. 779; James v. Standard Oil Co.,
189 Fed. 719, affirmed in 191 Fed. 827.
See Glasgow Steam Shipping Co. v.
Tweedle Trading Co., 154 Fed. 84.

The rule that the master of a vessel
has no authority by virtue of his position,
either actual, or apparent, to sign a bill
of lading for cargo not actually received
on board, applies when there is only a
deficiency in part through mistake, and
the owner can not be held liable, either
by the original consignee or an indorsee
of the bill of lading, for such a shortage,
where the quantity actually received is
delivered. American Sugar Refin. Co. v.
Maddock, 93 Fed. 980, 30 C. C. A. 42,
affirming decree, 91 Fed. 166.

Evidence showing delivery of entire
cargo. — A ship received 151,886 cases of
petroleum to be transported to Japan.
The consignee only acknowledged receipt
of 151,661. The cargo was tallied out of
the steamer by her second and third offi-
cers and three of her sailors, whose tally
showed a shortage of 753 cases, which
was manifestly incorrect. When the dis-
crepancy was discovered, the master re-
quested a recount from the consignee,
which was declined, on the ground that it
could not be conveniently had, and in the
meantime part of the cargo was rcsiiippcd.
It was shown that no part of the cargo
was used on the steamer, and there was



no opportunity for abstraction or loss
during the voyage, and that all of the
cargo received was delivered except six
cases, purchased for the steamer's use.
Held, in the absence of other evidence,
such facts established a prima facie case
of delivery of the entire cargo. McLaren
V. Standard Oil Co., 124 Fed. 958.

33. The Sikh, 175 Fed. 869. decree af-
firmed in 184 Fed. 990, 107 C. C. A. 566.

34. Planters' Fertilizer Mfg. Co. v. El-
der, 101 Fed. 1001. 42 C. C. A. 130.

35. The Good Hope, 190 Fed. 597.

36. Notice of arrival of goods. — Morgan
V. Dibble, 29 Tex. 107, 94 Am. Dec. 264.
See ante, "Carrier by Water," § 844; "Ex-
press Companies and General Carriers by
Water," § 1093; "Necessity for Notice of
Arrival of Goods," § 1095.

A bill of lading provided that the goods
were to be taken from the ship by the
consignee immediately upon their coming
to hand in discharging the ship, and that
the carrier's responsibility should cease
package by package immediately upon the
goods leaving the ship's deck or tackle,
and that, if not taken from alongside by
the consignee, the goods would be landed
at his risk of fire, loss, or injury on the
dock or in the warehouse or in craft. The
bill contained no provision as to nofice
to the consignee of the arrival of the
goods. Held, that it was the duty of the
carrier to give notice of the time and place
of the arrival of the vessel and a rea-
sf)na])le time thereafter for the removal
of the goods. Judgment, 92 N. Y. ,S. 86,
102 App. Div. 39, affirmed in Rose'nstein
V. Vogcmann, 77 N. E. 625, 184 N. Y. 325.

37. Jennings v. Clyde Steamship Co.,
133 N. Y. S. 298, 148 App. Div. 015; Sea
Coast Lumber Co. v. Clyde Steamship
Co., 133 N. Y. S. 303, 148 App. Div. 622.



§§ 4284-4285



CARRIERS.



3894



consignee has actual notice of the arrival of the vessel containing the consign-
ment, the master is not bound to give him further notice thereof ; ^^"^ but there
are cases holding the contrary. 2^"

Sufficiency of Notice. — See ante, "Duties in Making Delivery,'' § 845.

§ 4285. Mode and Sufficiency of Delivery. ^i^'— Must Be Attended with
No Fact to Impair Title. — The delivery contemplated by the contract is a
transfer of the property into the power and possession of the consignee. The
surrender of possession by the master must be attended with no fact to impair
the title or affect the peaceful enjoyment of the property.'*"

Necessity for Personal Delivery. — See ante, "Necessity for Personal De-
livery," § 848.

Time of Delivery. ^ — A delivery by the carrier, to be effectual, should not only
be at the proper place, which is usually the wharf, but at a proper time.^^

Place of Delivery.-*- — A carrier by water must deliver goods at the destina-
tion,*^ at the customary wharf for the discharge of a vessel in the absence of a
contract or established usage to the contrary.** Any right of the carrier under
the contract to compel consignees to take goods shipped "from alongside" is
waived by the carrier unloading the goods onto the dock.*"' Where a vessel went
aground not far from a port of delivery, consignees who received cargo where
she lay, thereby waived a delivery in strict compliance with the contract.*^ Al-
though provisions in a bill of lading permit the discharge of cargo at other ports
than that to which it is consigned in case of circumstances of war, which, in the
opinion of the master, render it unsafe to enter or discharge there, the master,
as agent of all concerned, is bound to exercise prudence to protect the interests
of the cargo as well as the vessel, and the discharge of cargo by him at another
port, as being contraband of war, is not justified unless the facts show that there
was reasonable necessitv therefor."*'



38a. Where consignee has actual no-
tice of arrival of ship. — The Ravensdale,
75 Fed. 413.

38b. The Middlesex, Fed. Cas. No.
9.533; Unnevehr v. Hindoo, 1 Fed. 627.

39. Mode and sufficiency of delivery.
—See ante, "In General," § 842; "What
Constitutes Delivery," § 843.

40. Must be attended with no fact to
impair title. — Rowland z<. Greenway (U.
S.), 22 How. 491, 16 L. Ed. 391; O'Brien
V. Miller, 168 U. vS. 287, 42 L. Ed. 469,
18 S. Ct. 140.

"Delivering the cargo charged with a
lien for an indebtedness of the shipowner
is not different in principle or effect from
the nondelivery of a portion or the whole
in a damaged condition. It is also analo-
gous in principle to a jettison of a portion
of the cargo for the benefit of the ship
and the remainder of the cargo, when
a clear right to contribution would ex-
ist, enforceable in admiralty. Dupont,
etc., Co. V. Vance (U. S.). 19 How. 162,
15 L. Ed. 584." O'Brien v. Miller, 168
U. S. 287, 42 L. Ed. 469. 18 S. Ct. 140.

41. Time of delivery. — Richardson v.
Goddard (U. S.), 23 How. 28, 16 L. Ed.
412. See ante, "Carrier by Water," § 844;
"Time of Delivery," § 847.

42. Place of delivery. — See ante, "Car-
rier by Water," § 844; "Place of Deliv-
ery." §§ 849-853.

43. Adams & Co. v. Haught, 14 Tex.
243.



44. Morgan v. Dibble, 29 Tex. 107, 94
Am. Dec. 264.

Where a consignee of goods did not
inform a transportation company of his
intention not to be bound by the estab-
lished custom at a certain port to make
wharfage charges against consignees and
not against the carrier, the carrier was
entitled to unload the goods at the wharf,
which was the usual place of deposit, in-
stead of delivering them out of the ship
or at its side. Riddick v. Dunn, 145 N.
C. 31, 58 S. E. 439, 13 Am. & Eng. Ann.
Cas. 382.

45. The Titania, 131 Fed. 229, 65 C.
C. A. 215, affirming 124 Fed. 975.

46. Accepting cargo at intermediate
point.— The Eva D. Rose, 151 Fed. 704,
decree modified on rehearing, 153 Fed.
912.

47. The Styria, 93 Fed._ 474.

The Austrian steamship Styria was
loaded at an Italian port with a cargo
of sulphur consigned to New York, and
cleared on April 24, 1898. On the day
before, a Spanish proclamation was is-
sued, declaring the existence of a state of
war between Spain and the United States,
and in which sulphur was declared con-
traband. On April 27th, the master, who
had not sailed, commenced the discharge
of the cargo, which was completed May
7th. Almost immediately after the dec-
laration of war the public prints con-
tained statements of negotiations for the



3895 carriage: of property. §§ 4285-4286

Effect of Custom or Usage. — See ante, "Effect of Custom or Usage,"
§ 846; "In General," § 849. A custom having been established to deliver car-
goes of tea within a particular part of the water front in a certain port, a vessel
having a cargo consisting principally of tea is bound to make delivery there if
required by the consignees, and it is no defense to a suit for damages for the
refusal to discharge there that in one or two instances other vessels have also
refused, nor is it material that other piers afforded better facilities for discharg-
ing.^^ Evidence that, on the arrival of a vessel in port, the master, by direc-
tion of the consignees, who were to pay the wharfage, engaged a berth for the
vessel at a particular wharf, is not sufficient to charge him with their knowledge
of a rule of that wharf concerning the mode of discharging cargoes different
from the usage at similar wharves in the same port."*'^

Opportunity to Inspect and Remove Goods. — See ante, "Carrier by
Water," § 844; "Duties in AJaking Delivery," § 845.

Insufficient Delivery. — A carrier who would deposit goods on a wharf at
night or on Sunday, and abandon them without a proper custodian, before the
consignee had proper time and opportunity to take them into his possession and
care, would not fulfill the obligation of his contract. ^*^ Where a carrier con-
tracted to deliver wheat to the consignee, who had an office on the pier within
the port of delivery but on the arrival of the vessel, the consignee directed the
master to proceed with his vessel across the channel of the river to a railroad
elevator within the port, and the cargo was destroyed by fire while waiting to
be discharged, there was not sufficient delivery before the fire to discharge the
carrier from liability.-''^

§ 4286. To Whom Delivery May Be Made— Misdelivery,— See ante, "To

Whom Delivery May Be Alade," §§ 854-857. It is not enough if the carrier by
water carry the goods in safety, but he must, in due time, and without demand
upon him, deliver them to the consignee or do that which in contemplation of law
is tantamount thereto, before he is discharged from his responsibility as carrier.^^
A ship's delivery of a consignment of dutiable goods to the customs authorities,
being required by the law and usage of the place — delivery to the proper party
thereafter devolving on such authorities — is a good delivery as between the
shipper and carrier.^^ By issuing bills of lading for merchandise, stipulating
for a delivery to order, the ship becomes bound to deliver it to no one who has
not the order of the shipper.-^^

Misdelivery. — A carrier is bound to deliver the goods entrusted to it for
transportation to the person entitled to receive them and it is liable for delivery
to the wrong person. •^•''

purpose of having sulphur exempted 48. Custom as to place of delivery. —

from contraband goods, and repeatedly Hewlett v. Burrell, 105 Fed. 80, 44 C. C.

stated that such efforts would be success- A. 3G3.

ful, of which statements the master was 49. Croucher v. Wilder, 98 Mass. 322.

aware, and also of the announcement of 50. Insufficient delivery. — Richardson v.

their success, and he was also notified of Goddard (U. S.), 23 How. 28, 16 L. Ed.

such result by one of the shippers before 412.

the discharge of the cargo was completed. 51. Gil)bs v. Van Buren, 48 N. Y. 061.

At the next Italian port, to which he 52. To whom delivery may be made.

went for a new cargo, on May 10th, he — Morgan v. Dibble, 29 Tex. 107, 94 Am.

lieard read an official announcement to Dec. 264.

the same effect, thougli it had not been 53. Delivery to custom authorities. —

publicly proclaimed. Other vessels sailed Herbst v. The Asiatic Prince, 97 Fed.

at about the same time he cleared with 343, affirmed in The Asiatic Prince, 108

cargoes of sulphur, and were not mo- Fed. 287, 47 C. C. A. 325.

lested. Held that, under the circum- 54. Stipulation for delivery to order. —

stances, it was his duty to wait a reason- The Thames (LI. vS.), 14 Wall. 98, 20 L.

able time before discharging the cargo, Va\. 804.

and, as he had reasonable assurance of 55. Misdelivery. — Sec ante, "Misdeliv-

safety by May 10th, he was not justified cry," §§ 858-866.

in such discharge. The Styria, 93 Fed. Carrier not liable. — B. and C. took

474. goods to a boat and accepted a receipt



§§ 4287-4288 carriers . 3896

§ 4287. Failure or Refusal of Consignee to Receive Goods. — See ante,
"Failure or Refusal of Consignee to Receive Goods," § 868.

Sale of Goods. — Where goods arrive in a perishing condition from causes
for which the carrier is not responsible, and the consignee refuses to receive them,
the carrier is justified in selling the goods for their value in such condition.^*^

§ 4288. Transshipping and Forwarding. — When the vessel is wrecked
or otherwise disabled in the course of the voyage, and can not be repaired
without too great delay and expense, the master is at liberty to transship the
goods and send them forward ; and if another vessel can be had in the same or
a contiguous port, or at one within a reasonable distance, it becomes his duty
under such circumstances to procure it and transport the goods to their place
of destination. ^■'' The rule, however, is not obligatory in cases where the goods
are not perishable, provided the ship can be repaired in a reasonable time. In
that state of the case he may, if he deems it best, retain the goods until the re-
pairs are made, and forward them in his own vessel ; and upon the same prin-
ciple and for the same end, if he have no means to transship the goods, it is
his duty to repair his own vessel, when capable of being repaired, provided it
can be done within a reasonable time, and he has the means at his command. ^^

Where Voyage but Part of Transit. — Where a bill of lading, signed by a
master, sliows that a voyage to a particular place named on it is but part of a
longer transit which it is understood is to be made by the cargo shipped, and
that the cargo is to be carried forward in a continuous way on its further voy-
age, the master must be presumed to have contracted in reference to the course
of trade connected with getting the cargo forward.^^ In such a case, if any
obstacle should intervene, which by the regular course of the trade Is liable to
occur and for a short time retard the forwarding, the master can not, from a
mere inability to find storage at the intrepot, turn about, and taking the cargo
to some near port, store it there, and inform the consignee ; but he should
wait.^*' The general course of business in forwarding when the ship of the
signer of a through bill of lading does not go all the way to the port of ulti-
mate destination, of which fact the shipper has knowledge, or is given notice by
the through bill of lading, and the manifest necessity of transshipment by the
through undertaker under such contract as it can reasonably make, justifies the
presumption of its authority to make such contract, and to bind the shipper
thereby, although the terms of the new contract may not be in all respects the
same as its own ; but, in any event, the undertaking and liability of the second
carrier are measured by its own contract, provided its terms are reasonable, and

from the second clerk in the name of 374; The Maggie Hammond (U. S.), 9

A., to whom C. was indebted. B. held Wall. 435, 19 L. Ed. 772; Clark v. Barn-

himself out as owner to the captain, ac- well (U. S.), 12 How. 272, 13 L. Ed. 985;

companied the goods on the trip, and Rich v. Lambert (U. S.), 12 How. 347,

when the boat reached its destination re- 13 L. Ed. 1017; Harrison v. Fortlage, 161

ceived the goods and paid the freight. U. S. 57, 40 L. Ed. 616, 16 S. Ct. 488.

Held, that A. could not recover the value 58. Propeller Niagara v. Cordes (U.

of the goods from the owner of the boat, S.), 21 How. 7, 16 L. Ed. 41. See The

since the receipt was taken merely as a Strathdon, 89 Fed. 374.

security, and B. was by the consent of 59. Where voyage but part of transit.

A. and C. made apparent owner, and put — The Convoy's Wheat (U. S.), 3 Wall,

in a position to impose on the officers 225, 18 L. Ed. 194.

of the boat. De Baun v. Atchison, 14 60. Inability to find storage at entrepot.

Mo. 543. —The Convoy's Wheat (U. S.), 3 Wall.

56. Sale of goods. — The Bobolink, Fed. 225, is L. Ed. 194.

Cas. No. 1,588, 6 Sawy. 146. See Astsrup if there is easy telegraphic communi-

V. Lewy, 19 Fed. 536. cation with the consignees, the master

57. Transshipment and forwarding should notify them of his difficulty, that
when vessel wrecked or disabled. — Pro- they may send him, if they please, in-
peller Niagara v. Cordes (U. S.), 21 How. structions. The Convoy's Wheat (U.
7, 16 L. Ed. 41; The Strathdon, 89 Fed. S.), 3 Wall. 225, 18 L. Ed. 194.



3897



CARRIAGE OF PROPERTV.



§§ 4288-4289



not in contravention of the maritime law.^^ The foreign agents of an owner ot
merchandise, authorized to ship the goods, also have imphed authority, gen-
erally speaking, to agree upon the terms of the contract of carriage ; and where
they know that transshipment is necessary they may lawfully empower the first
carrier to deliver the goods to a connecting carrier upon terms that are not the
same as those of the first bill of lading.^2

Transshipment without Legal Excuse. — As agent of the owner the mas-
ter of a vessel is bound to carry the goods shipped on her to their place of des-
tination in his own ship, unless he is prevented from so doing by the act of God,
the public enemy, the act of the shipper, or by some one of the perils excepted
in the contract of shipment.^'^ A transshipment of the freight without a legal
excuse, however competent and safe the vessel into which the transfer is made,
is a violation of the contract, an infringement of the rights of the freighter,
and subjects the carrier to liability if the freight be lost.^*

§§ 4289-4311. Loss or Injury— §§ 4289-4296. Liability as Insurer
— § 4289. In General. — A carrier of merchandise by water for hire is to be
regarded as a common carrier, and like common carriers by land, in the absence
of any legislative provision prescribing a different rule, is in general to be held
responsible as an insurer, "^^ and as such is liable for the safe custody, due trans-
portation, and right delivery of the goods or merchandise which it receives and
undertakes to transport ; ^^ and consequently is liable in all events and for every
loss or damage to the merchandise, unless it happen by the act of God, or the
public enemy, the fault of the shipper or owner of the goods, the inherent nature
of the goods,^'^ the law of the country,^^ or some other cause or accident,
without any fault or negligence on its part, as is expressly excepted in the bill
of lading or contract of shipment.^9 The carrier must show that the loss or
injury was from some cause for which he is not responsible J*^ So a vessel is



61. Transshipment by through carrier
— Liability of second carrier. — The St.
Hubert, 107 Fed. 727, 46 C. C. A. 603.

62. Authority of shipper's agen|t to
make contract— The St. Hubert, 102
Fed. 3G2, holding that where in such case,
the goods are shipped on through bills
of lading which authorize the initial car-
rier to transship and forward by steamer,
"subject to the terms and conditions of
local bills of lading issuedby the agents
of such steamer," or contain other equiv-
alent provisions, the owner of the goods
are bound by the provisions of bills of
lading issued by the connecting carrier
to the first carrier therefor on their trans-
shipment, so far as such provisions are
lawful and enforceable.

63. Transshipment without legal ex-
cuse. — The Alaggie Hammond (U. S.), 9
Wall. 435, 19 L. Ed. 772.

64. Cox V. Foscue, 37 Ala. 505, 79 Am.
Dec. 69; Louisville, etc., Packet Co. v.
Rogers, 20 Tnd. App. 594, 49 N. E. 970.

65. Liability as insurer. — Clark v. Barn-
well (U. S.), 12 How. 272, 13 L. Ed. 985;
The Delaware (U. S.), 14 Wall. 579, 20
L. Ed. 779; The Lady Pike (U. S.), 21
Wall. 1, 22 L. Ed. 499. See, also. Work
V. Leathers, 97 U. S. 379, 24 L. Ed. 1012;
Liverpool, etc.. Steam Co. v. Phenix Ins.
Co., 129 U. S. 397, 32 L. Ed. 788, 9 S.
Ct. 469; The Edwin L Morrison, 153 U.
S. 199, 38 L. Ed. 688, 14 S. Ct. 823; The



Caledonia, 157 U. S. 124, 39 L. Ed. 644,
15 S. Ct. 537; The Folmina, 212 U. S.
354, 53 L. Ed. 546, 29 S. Ct. 363, 15 Am.
& Eng. Ann. Cas. 748. See ante, "Gen-
eral Rule," § 989.

66. Commander-in-Chief (U. S.), 1
Wall. 43, 17 L. Ed. 609; The Delaware
(U. S.), 14 Wall. 579, 20 L. Ed. 779; Pro-
peller Niagara v. Cordes (U. S.), 21 How.
7, 16 L. Ed. 41; Clark v. Barnwell (U.
S.), 12 How. 272, 13 L. Ed. 985; Liver-
pool, etc.. Steam Co. v. Phenix Ins. Co.,
129 U. S. 397, 32 L. Ed. 788, 9 S. Ct.
469; The Propeller Commerce (U. S.), 1
Black 574, 17 L. Ed. 107.

67. See post, "Exceptions and Ex-
cuses," §§ 4290-4296.

68. Law of country. — Howland v.
Greenway (U. S.), 22 How. 491, 16 L.
Ed. 391. See post, "Seizure, under Le-
gal Process," § 4293.

69. Excepted causes. — Clark v. Barn-
well (U. S.), 12 How. 272, 13 L. Ed. 985;
Propeller Niagara v. Cordes (U. S.), 21
How. 7, 16 L. Ed. 41; The Northern
Belle (U. S.), 9 Wall. 526, 19 L. Ed. 746;
The Maggie Hammond (U. S.), 9 Wall.
435, 19 L. Ed. 772; The Delaware (U.
S.), 14 Wall. 579, 20 L. Ed. 779; The
Lady Pike (U. S.), 21 Wall. 1, 22 L.
Ed. 499. See post, "Limitation of Lia-
bility," Chapter 40.

70. See post, "Cause of Loss or In-
jury to Goods," § 4317.



§§ 4289-4290 carriers. 3898

liable for damage to a cargo of cement which was received in good condition,
Lut was lumpy and set when delivered, due to its having been wet, in the absence
of explanation of the manner in which it became wet.'''^ The rule as to the
carrier's liability applies whether he is employed in internal, in coasting or in
foreign commerce. '^ The liability of the carrier for the loss of a package of
money intrusted to him to be transported is to be determined by an inquiry into>
ihe nature and extent of the employment and business in which he holds him-
self out to the public as engaged. '^^

Liability as Forwarder. — Where a vessel has only contracted to carry the



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 148 of 214)