Thomas Johnson Michie.

A treatise on the law of carriers (Volume 4) online

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Instances where carrier not negligent.
— A vessel discharged a shipment of mac-
aroni on a covered pier in New York,
where two days after she had left that
pier it was injured by water by the burst-
ing of a leader from the roof of the
shed during an extraordinary rainfall.
The pipe was sound, and had not leaked
before. Held, that no negligence was
attributable to the ship in leaving the
goods near such pipe, and that she could
not be held liable for the loss. The
Italia, 187 Fed. 113, 109 C. C. A. 33.

A consignment of oleo stearine, the
trade name of which in France is "pressed
tallow," was shipped from Paris, and
transshipped at London, for New York,
as "tallow." The consignment was dis-
charged at the steamer's covered pier,
but was placed, uncovered, in an adjacent
portion of the street, by the stevedore,
who supposed it was tallow. The goods
were here damaged by rain, but it ap-
peared that tallow would not have l)een
■damaged under similar conditions. Held,
that the ship was not liable. The Mis-
sissippi, 76 Fed. 375.

The fact that a liulletin from the
weather bureau had ])een posted and
published in a port in the morning, pre-
dicting light showers or a moderate thun-
der storm at such port during the day,
can not alone be held sufficient to charge

the master of a vessel with negligence in
discharging a consignment of perishable
goods on an open wharf during the morn-
ing, when the weather was at the time
clear, such as would render the vessel
liable for their subsequent injury by
rain, and especially where the master
was unacquainted with the English lan-
guage, and it does not appear that he
had actual knowledge of the forecast,
and no objection to the time or place of
delivery was made by the consignee.
The St. Georg, 104 Fed. 898, 44 C. C.
A. 246.

Where the owners of a consignment of
6,400 bales of jute, required by the bill
of lading to take it from the ship's tac-
kles, were duly notified of the arrival of
the ship and time of discharging, and on
the first day renloved over 1,200 bales,
but did not remove any more until four
days later, because it was more conven-
ient to load it on lighters after the ship
had left her berth, the ship was not lia-
ble for an injury by rain to a portion of
the jute which she was compelled to un-
load on an uncovered part of the wharf
because the shed under which the most
of it was placed had been filled, and
where she covered it, and took all rea-
sonal)le care to protect it from injury.
Smith V. Britain Steamship Co., 123 Fed.

80. Leaving goods exposed. — Vitelli v.
Cunard Steamship Co., 203 Fed. 697, 122
C. C. A. 81.

81. Where goods have been delivered.
—The St. Georg, 104 Ft-d. S9S, 44 C. C.
A. 246, holding that where the contract
made l)y a bill of lading for a consign-
ment of goods shipped by steamer pro-
vided that the goods should be dis-
charged as soon as the steamer was ready
to unload, and should be received by the
consignee at the ship's dock as fast as
she could deliver them, and be thereafter
at his sole risk and expense, and tiie
consignee was notified, and was present
while the goods were being discharged

§§ 4306-4308 carriers. 3914,

as where the consignee, after being notified of the arrival of the goods and pay-
ing the freight, permitted a portion of the goods to remain on the carrier's un-
enclosed platform or shed, according to custom. s- A provision of a bill of lad-
ing requiring the consignee to be ready to receive the cargo as soon as the vessel
was ready to unload, in default of which she was authorized to land, warehouse,
or lighter the same at the consignee's risk, does not relieve her from liability
for damages arising from her failure to reasonably protect perishable goods
landed on a dock upon a claim of delivery, where she refused to permit the con-
signee's agents to remove them, although having no claim thereon for freight.^'^
A general custom of a port, that "after a vessel arrives at the port and goes to a
wharf designated by the consignee, and due notice has been given to the con-
signee, and the cargo is taken off and distributed upon the wharf according to
the marks and numbers, the care of the goods devolves upon the consignee," is

§ 4307. Acts of Employees or Third Persons. — For the acts of commis-
sion or omission, of its employees, occasioning damage, the carrier is equally
liable as for acts of his own.^^ A carrier undertaking to take lumber from
a schooner and place it on its barge and convey it to a designated point, can not
relieve itself from liability by showing that a loss occurred because of the act
of the schooner in an honest though mistaken effort to save the barge which had
been left by the carrier for the night without a watchman.'^^ Carriers by wa-
ter are liable at common law, and independently of any statutory provision, for
losses arising from the acts or negligence of others, to the same extent and upon
the same principle as carriers by land.^^ So if a loss of goods occurred from the
carelessness or wantonness of the navigators of another vessel, brought into col-
lision with the vessel, that does not excuse the carrier.^^

§ 4308. Duties after Injury or Disaster. — Safe custody is as much the
duty of a carrier as conveyance and delivery; and when he is unable to carry the
goods forward to their place of destination, from causes which he did not pro-
duce, and over which he has no control, as by the wrecking or stranding of the
vessel, he is still bound by the original obligation to take all possible care of the

upon an uncovered wharf, and made no partly loaded, and while it was lying un-

objection to the time, manner, or place attended, one end grounded at night at

of delivery, there was an actual delivery low tide, causing seams to open and the

and acceptance when they were so placed barge to leak. This was promptly dis-

on the wharf. covered, and an unsuccessful attempt

82. Stone v. Clyde Steamship Co., 139 made to pump out the barge; but no ef-
N. C. 193, 51 S. E. 894. fort was made for 16 hours to save or

83. Refusal to permit removal of goods. safeguard the flour that had been loaded,.
The Alnwick, 135 Fed. 884. after which the barge sank, causmg loss

84. Valid custom.— Pickering v. Weld, and injury to the flour. Held, that re-
159 Mass. 522, 34 N. E. 1081. spondent, having no other representative

85. Liability for acts of employees.— in control of the barge, was liable for
Bowman v. Hilton, 11 O. 303; Clark v. the negligence of the servants of the
Richards, 1 Conn. 54. See Stockton Mill- warehouse company m failing to exer-
ing Co. V. California Nav., etc., Co., 165 cise ordinary care to preserve the flour
Fed. 356; The Dana, 190 Fed. 650. See, while in its custody for transportation,
generally, ante. "Negligence of Agents California Nav., etc., Co. v. Stockton
or Servants," § 1014. Mill. Co., 184 Fed. 369, 107 C. C. A. 46,

The carrier is liable for a breach of a affirming judgment. 165 Fed. 356.

contract of the master within the scope 86. Stockton Lumber Co. v. California

of his authority resulting in an injury to Nnv., etc., Co.. 101 Pac. 541, 10 Cal. App.

the cargo. Bell v. Wood (Ky.), 1 Dana 197. . , . ^

146, 87. Acts or negligence of third persons.

Respondent contracted to transport —Propeller Niagara v. Cordes (U. S.),.

flour for libelant in open barges and to 21 How. 7, 16 L. Ed. 41; Mershon v. Ho-

load the same, but at libelant's request bensack, 22 N. J. L. 372.

employed a warehouse company to do 88. Lawrence v. McGregor (O.),.

the loading. After a barge had been Wright 193.

3915 CARRIAGE OF PROPERTY. §§ 4308-4311

goods, and is responsible for every loss or injury which might have been pre-
vented by human foresight, skill, and prudence.^^ Where it appears that a part
of the cargo of a wrecked vessel was so stored that it might have easily been
saved, and that several opportunities to reship what was saved were neglected,
;he carrier is responsible to the shipper for his loss, though the shipment was
at the owner's risk, and "dangers of the river" were excepted.^*^ Where the
master of a wrecked vessel abandons her to the underwriters without exercising
due diligence to save the cargo, the fact that the underwriters take possession,
and sell a part of the cargo which is not insured, does not exempt the carrier
from liability to the shipper. ^i Owners, who supervise the repair of a vessel
after a collision, are personally negligent in failing to make an examination of
a part of the cargo for damage caused by the shock, when such damage had been
discovered in another part of the cargo, similarly placed, and they are liable for
damage arising from causes which an examination would have revealed, notwith-
standing a clause in the bill of lading exempting the owner from liability for dam-
age from collision. ^-
Duty to Repair Injury to Goods. — See ante, "Duties after Injur}%" § 1022.

§ 4309. Effect of Insurance. ^^ — jt is not a defense to an action by a ship-
per against a vessel owner for goods lost through the latter's negligence that the
goods were insured and the insurance has been paid, though it does not appear
from the pleadings or evidence that the suit is brought by the direction or for
the benefit of the insurer.^^ Where a carrier already held policies insuring it
against loss through liability to cargo owners, a provision in a bill of lading,,
in consideration of a higher freight rate, that the cargo therein specified "is cov-
ered by marine insurance while on board, * * * under and in accordance
with and subject to the conditions and limitations of policies of marine insurance
held by" the carrier, must be construed as an obligation on the part of the car-
rier to pay the shipper's loss under the same contingencies as permitted it, through
its reinsurance, to throw the loss on its own insurers. ^^

§ 4310. Estoppel to Deny Liability to Deliver in Good Order. — A ship,,
which received a cargo, carried it to the consignees at the port of destination,
and then libelled the cargo for freight, is estopped to deny her liability to de-
liver m like good order as received, with the usual exceptions, and the fact that
the master of the ship refused to sign the bill of lading, upon the ground that
the cargo was not in good order, is immaterial. ^^

§ 4311. Persons and Vessels Liable. — Owners of Vessel. — The owner
of a vessel is never liable as a carrier merely by virtue of his ownership. The
vessel must also have been in his employment, so as to make him a party to the

89. Wrecking or stranding of vessel. them. Charleston, etc., Steamboat Co. v^
—The Maggie Hammond (U. S.), 9 Bason (S. C), Harp. 262.

Wall. 435, 19 L. Ed. 772; Propeller Nia- 91. Bixby v. Deemar, 4 C. C. A. 559,

gara v. Cordes (U. S.), 21 How. 7, 16 54 Fed. 718.

L. Ed. 41; The Portsmouth (U. S.), 9 92. The Guildhall, 12 C. C. A. 445, 64

Wall. 682, 19 L. Ed. 754. Fed. 867; Peterson v. Schultze-Berge, 1^

90. Bixby v. Deemar, 4 C. C. A. 559, C. C. A. 445, 64 Fed. 867, affirming de-
54 Fed. 718. cree, 58 Fed. 796.

A steamboat, going through an inland 93, Effect of insurance.— See ante, "Ef-

passage, grounded from the reflux of the fg(,|. ^f Insurance," §§ 1023-1029.

tide, and fell over, so that bilge water ^. n^. 1 ^ -yn-w r^ n ^•c

,„•.., u- A ■ ■ A u c 94. Stockton Milling Co. v. California

rose into the cabin and injured a box of xt j. r^ -,,-r t? j o^^ c r> 1 -

books. Held, that the owners of the boat ^^^^' ^t^- g"- ^^ ^^^- f^^' J'^f^ ^^^^I

were responsible for this injury, though % .^o , j- ^ew Y9rk etc R- Co., 16^

the bill of lading excepted "dangers of ^^^- ^^^' ^^^'^^^ '" 168 Fed. 248.

the navigation," and though the ground- 95- Southern Cotton Oil Co. v. Mer-

ing of the boat was unavoidable, as the chants', etc., Transp. Co., 179 Fed. 133.

carriers were bound to remove the books 96. The Water Witch (U. S.), 1 Black

from the cabin before the water reached 494, 17 L. Ed. 155.

^ 4311 CARRIERS. 3916

contract for carriage. The party having the control of the vessel, and in whose
business it is engaged, is regarded as the owner pro hac vice, and as such is
answerable to the freighter.^" The owner of a chartered vessel, retaining con-
trol of her navigation, is liable for injuries to a part of the cargo occasioned by
unaccustomed and dangerous goods subsequently taken aboard."*^ Where a ship-
master agreed to take the defendant's schooner, for the purpose of getting em-
ploy in the freighting business, and engaged "to victual and man her, and pay
half of all port charges, pilotage, etc. ; and the defendant engaged to pay the
other half, together with eight dollars per month for one man's wages, and to
put the schooner in sufficient order for the business ; and all money so stocked in
the schooner, whether for freight or passage, or whatever, was to be equally di-
vided between the master and defendant, each party accounting for the above,"
it was held that the contract did not make him and the defendant partners, and
that the defendant was not answerable to a shipper of goods which had not been
delivered according to the bill of lading.^^^ It is not necessary that the owners
of a boat shall always receive or be entitled to a reward for the carriage of goods,
in order to render them liable for a loss ; if there was an agreement between the
master and the owners, or between the owners themselves, by which the master
in the one case, or some of the owners in the other, were to receive to their use
exclusively, the freight earned in whole or in part by the boat, such an agreement
would not exempt all the owners from liability ; unless it was known to the ship-
per at the time his shipment was made.i But a shipper of cotton can not recover
for its loss of all the owners of a boat carrying goods for hire where he makes
a special contract with some of the joint owners, without the knowledge of the
others, by which the freight is to go in extinguishment of a demand of the shipper
against the owners with whom the contract was made.- The part owners of a
steamboat are liable for the torts of the master, who is also a part owner, done
in the execution of the business on which the boat is engaged.-''

Vessel. — Whenever the owners of a ship are liable for injury to her cargo,
the ship is also liable.-* The liability of a vessel in rem for want of due diligence
in the care and custody of goods received on board for transportation is the
same whether the owners of the ship remain in possession as carriers, or whether
the terms of the charter party are such as to constitute a demise of the vessel for
the voyage, so as to render the charterers the owners pro hac vice, and alone
personally responsible for the transportation.^"* Where the owners of certain
steamboats formed an association, and appointed a common agent, with authority
to sign bills of lading, under an arrangement by which the bills were frequently
signed on delivery of the goods at the landing, and the goods were to be taken
by the first boat which passed, the name of which was usually entered in the bill
when the goods were received on board, it was held that, where goods were de-
stroyed at the landing after the bills of lading were signed, the fact that no par-
ticular boat was mentioned therein would not prevent the maintenance of a libel
against the next boat which passed the landing, and upon which the goods would
liave been shipped. ^^

Consignee Furnishing Towage.— The consignee of a cargo, having assumed
by his contract the duty of furnishing towage, can not relieve himself from lia-
bility for the manner in which it is performed by the employment of a towing

97. Owners of vessel. — Tuckerman v. 2. Jones v. Sims, 9 Port. 2.36, 33 Am.
Brown (N. Y.), 17 Barb. 191. Dec. 313. ^ ^ ^,

98. Owner retaining control of naviga- 3. Taylor v Briffham, Fed. Cas. No.
tion.-The T. A. Goddard, 12 Fed. 174. 13.781^ 3 Woods 377.

«« r. , /AT X c -D- 1 4. Vessel. — The Huron v. Smimons, 11

99. Cutler z\ Wmsor (Mass.), 6 Pick. q ^^^

335, 17 Am Dec 385. See Denny v. Ca- g ^j^^ ^ ^ Goddard, t2 Fed. 174.

iDOt (Mass.), 6 Mete. 90. ^ ^j^^ Guiding Star, 53 Fed. 936, judg-

1. Jones V. Sims, 9 Port. 236, 33 Am. ,„ent affirmed in 62 Fed. 407, 10 C. C. A.

Dec. 313. 454.

3917 CARRIAGE OF PROPERTY. §§ 4311-4313

company, and is responsible to the vessel for any damage or injury caused by
the negligent manner in which the service is performed by such company^

Failure to Furnish Covers for Lighter.— Where the agent of a steamship
company, to facilitate unloading employed a lighter without covers, and agreed on
behalf of the steamship company to furnish the covers, which he failed to do,
resulting in injury to the cargo from rain, the lighter was not liable in rem, but
the agent was primarily, and the steamship company secondarily, liable.^

Loss Through Negligence of Lighter.— Where an ocean carrier undertook
to transship goods, and employed a lighterage company for the service, they are
jointly liable for a loss of the goods through the negligence of the lighterage

§§ 4312-4327. Actions— § 4312. By Carrier.— Right of Carrier to
Maintain Action. — A carrier by water of merchandise may maintain an action
in his own name for its loss or injury, and may sue in admiralty as well as at
common law.^*^ The carrier's right of action is not defeated by the fact that the
loss has been paid by an insurer or that he is doing business under a fictitious
or trade name, and that contracts of affreightment are made in such name.^^

§§ 4313-4327. Against Carrier— § 4313. In General.— Jurisdiction

of Admiralty.— Where the cargo, or a portion thereof is not delivered, or de-
livered in a damaged condition by the fault of the master, the right to proceed
in admiralty to recover the damage sustained is clear. ^ -

Prerequisites to Bringing Action. — See ante, "Conditions Precedent," §
.875; "Prere(|uisites to liringing Action," § 960; "Conditions Precedent,"' § 1034.

Nature and Form of Action.^" — Consignees or shippers may proceed in
the admiralty in rem against the vessel to enforce their maritime lien, or they
may waive that lien and still proceed in the admiralty in personam against the
owners of the vessel to recover damages for the nonfulfillment of the contract,
or they may elect to bring a common action against the owners to recover dam-
ages, as in other cases for the breach of a contract to be executed on land.^"*
Assumpsit lies against the owner of a steamboat in favor of the owner of the
•goods for breach of a contract of the master within the scope of his authority
resulting in injury to the cargo shipped. ^^

Who May Maintain Action.— To sustain an action against a carrier for loss

7. Consignee furnishing towage. — 11. Loss paid by insurer — Doing busi-

Thompson t'. W'inslow. 12S Fed. 7.3. ness under fictitious name. — The Xonpa-

8. Failure to furnish covers for Hghter. riel, 149 Fed. 521.

— The Seven Bros. No. 1, 203 Fed. 21, 12. Jurisdiction of admiralty. — O'Brien

121 C. C. A. .SR.'i. 7'. Miller, 1C8 U. S. 287, 42 L. Ed. 469. 18

9. Loss through negligence of lighter. S. Ct. 140; Schooner Freeman v. Buck-
— Smith V. Booth, 122 Fed. 020, .58 C. C. ingham (U. S.), 18 How. 182, 15 L. Ed.
A. 479. aftirming 110 Fed. OSO. 341; Liverpool, etc.. Steam Co. v. Phe-

10. Right of carrier to maintain ac- nix Ins. Co., 129 U. S. 397, 32 L. Ed.
tion.— The Nonpariel, 149 Fed. 521. See 788, 9 S. Ct. 469; The Maggie Hammond
ante, "Right of Carrier to Maintain Ac- (U. S.), 9 Wall. 435, 19 L. Ed. 772; The
tion," § 808. Belfast (U. S.), 7 Wall. 024, 19 L. Ed.

Libelant, a lake carrier, which con- 200; The Hahil, 100 Fed. 120; New Jer-

tr.-icted for the carriage of merchandise sev Steam Nav. Co. v. Merchants' Bank

from New York to Chicago, and after- (U. S.). How. 343. 12 L. Ed. 405.

wards chartered the respondent canal 13. Nature and form of action.— See

boat to carry the cargo from New York ante, "Form of Action," § S7(); "Nature

to Buffalo, to be there transshipped, of Action," § 955; "Nature and Form," §

made such contract in the capacity of 1032; "Nature and Form of Action," §§

shipper, and as such may maintain a suit 2095-2058.

in rem against the canal boat to recover 14. The Belfast (U. S.). 7 Wall. 624,

for damages to the cargo durine the ship- 19 L. Ed. 260. See The Eddy (U. S.). 5

merit. The Prr-sfiuc Tsle, HO Fed. 202. Wall. 481, 18 L. Ed. 480; The Atlas. 93

Right of action assipnable. — See ante, U. S. 302, 23 L. Ed. 803.

"Right of Carrier to Ma-ntain .Action," 15. Assumpsit. — Bell v. Wood (Ky.),

§ 808. ] Dana 146.

§§ 4313-4314



of or injury to goods or for delay in delivery the plaintiff must be the owner
or have some special interest in them.^*^ A consignee of goods may sue in a
court of admiralty, either in his own name, as agent, or in the name of his prin-
cipal, as he thinks best.^'^ One who contracts to furnish a certain lot of cattle
to be carried by a ship, agreeing to pay for any detention of the ship while wait-
ing for them, may, without proof that the cattle are his, there being no stipula-
tion that they should be, recover on the stipulation in the contract for payment
i<y carrier of expense of feed, in case of delay in sailing. ^^ A claim by the car-
rier that the plaintiff was not entitled to recover because he was not the owner
of the goods is not sustained, where the evidence showed that he had possession
of the goods with the right to sell and collect the proceeds. ^^ A charterer of a
vessel to carry a cargo of which he is not the owner, but merely the agent for its
sale on commission, has no legal interest therein which will support an action
against the vessel for its loss or damage ; nor can he maintain such action as.
trustee for the owner, who was not a party to the charter.-*^

Applying: Part of Claim for Damages to Extinguish Claim for Freight.,
— Parties claiming damages for loss of goods resulting from the fault of the
master and crew can not split up the claim for damages by applying a part to-
extinguish the claim for freight, and taking a decree for the remainder.^i

§ 4314. Pleading.— In Common- Law Action. — The same rules govern
pleadings in a common-law action against a carrier by water as govern in ac-
tions against other common carriers. - A petition alleging that defendant agreed
to transport plaintift"s corn by river as a common carrier, and that the sinking^
of the barge and the loss of the corn were caused by the negligence of defend-

16. Who may maintain action. — See

ante, "Right to Maintain Action against
Carrier," §§ 809-811. See, also, ante,
"Rights of Action," §§ 2059-2062; "Par-
ties Plaintiff," §§ 2064-2066.

Illustration. — Where plaintiff, having a
grub-staking contract with certain min-
ers, providing for the delivery of outfits
to them at an Alaskan port in consid-
eration of one-half of the profits of the
mining venture, and pursuant thereto
purchased and shipped the outfits by de-
fendant's steamer, which was lost, so
that the outfits were never delivered at
destination, plaintiff was still the owner,
and was therefore entitled to sue for the
damages sustained. Plaintiff was still en-
titled to sue as the trustee of an express
trust, even if the title to the outfits passed
to the firm, consisting of himself and the
persons to whom the outfits were to be
delivered, and should be regarded as the
owner of the goods from the time they
were delivered to the steamship for trans-
portation. Northern Commercial Co. v.
Lindblom, 162 Fed. 250, 89 C. C. A. 230.

17. Consignee. — Lawrence v. Minturn
(U. S.), 17 How. 100, 15 L. Ed. 58; Mc-
Kinlay v. Morrish (U. S.), 21 How. 343,
16 L. Ed. 100.

The consignee of a cargo may maintain
an action in admiralty against the vessel
for an injury to his interest therein, and,
when he is vested with the legal owner-
ship by an assignment of the bill of lad-
ing, he may recover for any breach of
the contract made by such bill of lading;

but where there was no bill of lading, and
he has no interest in the cargo, if he is,
in any event, authorized to recover
against the vessel on behalf of the con-
signor, it can only be such damages as
result from a breach of the contract be-
tween shipper and carrier, and arising
after the cargo has been received on
board. The Habil, 100 Fed. 120.

A party who has made advances on the
cargo of a ship, and been treated as con-

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