Thomas Johnson Michie.

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

. (page 183 of 214)
Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 183 of 214)
Font size
QR-code for this ebook

owners are relieved from liability under
section 3 of the Harter Act. FaT, etc..
Mfg. Co. V. International Nav. Co., 94
Fed. 675, reversed in 98 Fed. 636, 39 C.
C. A. 197, affirmed in 21 S. Ct. 591, 181 U.
S. 218, 45 L. Ed. 830. See ante, "In-
stances of Fault or Error in Navigation
or Management of Vessel," § 4538.

32. Cross-examination of petitioner.^
The John H. Starin. 191 Fed. 800.

33. Decree. — Providence, etc.. Steam-
ship Co. V. Hill Mfg. Co., 109 U. S. 578.
37 L. Ed. 1038. 3 S. Ct. 379, 617. See
ante, "Forms and Rules of Procedure,"
§ 4549.

34. The Scotland, 105 U. S. 24, 26 L.
Ed. 1001. See post. ".'Apportionment or
DistribiUion of Proceeds." § 4575.

35. Reopening decree to permit other
claimants to come in. — Dovvdell v. United
Stales Dist. Court, 139 Fed. 444, 71 C.
C. A. 288.

§§ 4573-4575 carriers. 40&4

liability, interest will only be allowed on the appraised value from the date

of the decree until payment, and in the event of an appeal by the owners,

which is unsuccessful, such interest will be decreed against them, in perso-
nam, and not against the stipulators. ^<^

§ 4574. Res' Adjudicata. — Where the court in a suit by shipowners, under
the statute, to limit their liability to certain libelants of vessels, adjudicated
the claims of the defendants, and distributed between them the fund in court
and an appeal was taken by the defendants, and the decree reversed, on the
ground that the petitioners had not surrendered all the property liable, but
no question was raised on each appeal as to the validity of the claims allowed to the
several defendants, nor was such question raised by new pleadings after the case
was remanded ; the validity of the claim of each defendant, or between them-
selves, was res judicata, and could not be questioned by any of the other de-
fendants on a subsequent appeal."'^

§ 4575. Apportionment or Distribution of Proceeds. — Under Rev. St.,
§ 4284 (U. S. Comp. St., 1901, p. 2943), the proceeds of s vessel surrendered
in proceedings for limitation of liability is to be distributed pro rata among
all claimants who establish a right to share therein. ^^ The amount recovered,
whether before the limitation proceedings are commenced, or afterwards, and
whether in the court of first instance, or an appellate court, will stand as the
recoverer's basis for pro rata division when the condemned fund is distrib-
uted. In all other respects the proceedings for obtaining a limitation of lia-
bility may proceed in ordinary course.^'*

Collisions, One Vessel at Fault. — If a collision happens between two vessels
at sea. and one of them is in fault without the privity or knowledge of her
owners, and the amount of their interest in the vessel and her freight then
pending is paid into court, it will, if insufficient to pay all the damages caused,
be apportioned pro rata amongst the owners of the injured vessel and of the
cargoes of both vessels in proportion to their respective losses.'**^* AMiere cargo
shipped under bill of lading exempting the carrier from damage by collision,
was damaged by or a result of a collision wuth another vessel which was
greatly in fault, and the owppr of e?ch vessel filed a petition praying for a
limitation of its liability for damages growing out of the collision, the under-
writer of the cargo and the owners of the vessels not at fault can only recover
of the owners of the vessel at fault pro rata to the extent of the bond
filed by the owners of the latter vessel in their limitation proceedings. The
fact tliat the underwriters of the cargo are compelled to bear a portion of
their own loss is the result of the limitation of liability act, the value of the
vessel at fault not being sufficient to pay the entire damage sustained. "Col-
lision" was an exception in all the bills of lading and as the damage was oc-
casioned by collision and within the exception, it rested upon the underwriter
to defeat the operation of the exception by proof of such negligence on the
part of the vessel carrying such cargo as would justify a decree against her
if sued alone. ■^^

Both Vessels in Collision in Fault. — In proceedings brought by two sepa-
rate vessels to limit liability for a collision, and in which both are found in
fault, the cost of raising one which was sunk in the collision in a place where

36. Allowing interest on appraised value. 39. The Benefactor, 103 U. S. 239, 26
—The H. F. Dimock, 77 Fed. 226, 23 C. L. Ed. 351; The City of Norwich, 118
C. A. 123. U. S. 46S. 30 L. Ed. 134, 6 S. Ct. 1150.

37. Res adjudica'a — Oregon R., etc., Co. 40. Collisions, one vessel at fault. — Nor-
V. Balfour. 90 Fed. 295, 33 C. C. A. 57. ^ich Co. v. Wright (U. S.), 13 Wall. 104,

38. Apportionment or distribution of 20 L. Ed. 585,

proceeds.— Boston Marine Ins. Co. v. ^^ ^^^^ Victory, 168 U. S. 423. 42 L. Ed.

Metropolitan Red"-ood Lumber Co., 197 .^„
Fed. 703, 117 C. C. A. 97. ' '


it was an obstruction to navigation is a proper claim against the fund for
distribution although it exceeds the value of the raised vessel. ■*-

Priority of Claims of Third Parties to That of Owner of Chartered
Vessel.— L'nder Rev. St., § 4286 [I'. S. Comp. St. I'JOl, p. 2944], relating to pro-
ceedings for limitation of liability, which provides that for the purpose of
such proceedings a charterer who is required to man, victual, and navigate a
vessel at his own expense shall be deemed the owner, and that a vessel under
such a charter "shall be liable in the same manner as if navigated by the
owner thereof," where in proceedings by such a charterer both vessels had
been found in fault for a collision, and each condemned to pay half the dam-
ages, and the charterer has been required to contribute the value of his vessel
and pending freight, and also the cause of action against the other vessel, the
claims of third party claimants arising out of the collision are entitled to
priority of payment from the fund over the claim of the owner for loss or
damage to his vessel.'*^

Right of Owner to Complain of Error in Distribution. — Where, in pro-
ceedings on the petition of shipowners to limit their liability to libelants of
a vessel, their petition is granted, and the fund in court is insufficient to pay
in full the amount found due to one defendant, the petitioners can not com-
plain that a portion of it is erroneously distributed to other claimants.^-^

§ 4576. Costs and Expenses of Administration. — In limited liability
proceedings, the costs arising on every contested issue should fall on the los-
ing party ; but the expenses of administration^ including the fees and other
carges of the ofificers of the court and of the commissioner, should be paid
from the fund, unless and so far as parties have made issues, and as to this
exception the owner stands in the same condition as any other party. All
such costs of adverse issues should be taxed without reference to the fund or
its existence, the same as the costs of any entirely independent litigation.'*'^

Costs of Monition. — In proceedings for limitation of liability, the cost of is-
suing and publishing the monition is an expense to be paid out of the fund.*^

Docket Fees. — In a proceeding for limitation of liability, where there is an
appraisal, and a stipulation for value given, the petitioner is entitled to a
single docket fee, and may deduct from the fund the expenses of adminis-
tration, but this may not include the cost of procuring the stipulation, nor the
expense of giving the same, nor of the appraisal ; each person claiming dam-
ages, and recovering the same, is entitled to a separate proctor's fee, payable
herein by the stipulators for costs, and not out of the fund.'*'^ Rev. St., § 824
(U. S. Comp St., 1901, p. 632), entitles a proctor who represents several
claimants who recover in a proceeding for limitation of liability to but a sin-
gle docket fee.'*^

42. Both vessels in collision in fault.— tion.— The H. F. Dimock, 77 Fed. 226, 23
The Mauch Chunk, 139 Fed. 747, affirmed C. C. A. 12:',.

in lo4 Fed. 182, 8.3 C. C. A. 276. 46. Cost of monition. — Boston Marine

43. Priority of claims of third parties to Ins. Co. f. Metropolitan Redwood Luml)er
that of owner of chartered vessel.—The Co., 197 Fed. 703, 117 C. C. A. 97.
Mauch Chunk. 139 Fed. 747, affirmed in 47. Docket fees. — In re Excelsior Coal
154 Fed. 182, 83 C. C. A. 276. Co., 136 Fed. 271, affirmed in 142 Fed.

44. Right of owner to complain of er- 724. 74 C. C. A. '>('>.

ror in distribution. — Oregon R.. etc., Co. 48. Boston Marine Ins. Co. v. Metro-

V. Ikilfour. !)f) !'e(!. 2!)5, 33 C. C. A. .■)7. politan Redwood Lum!)er Co.. 197 Fed.

45. Costs and expenses of administra- 703, 117 C. C. A. 97.



Control and regulations, p. 65.


Violation of regulations, p. 121.


See "Delivery."


See "Act of God;" "Inevitable Ac-


See "Title, Custody and Control of
Actions for failure to deliver or mis-

See "Delivery by Carrier."
Actions for loss or injury to goods:

See "Loss or Injury to Goods."

See "Baggage."
Bills of lading:

See "Bills of Lading."
Carrier as warehouseman:

See "Carrier as Warehouseman."
Carriers by water:

See "Carriers by Water."
Carriers of live stock:

See "Carriers of Live Stock."
Carriers of passengers:

See "Carriers of Passengers."

See "Charges."
Connecting carriers:

See "Connecting Carriers."

Dead bodies:

See "Dead Bodies."
Delay in transportation or delivery:

See "Delay in Transportation or

See "Delivery by Carrier."

Demurrage, p. 716.

Duty to receive and carry:

See "Duty to Receive and Carry."
Interstate and foreign commerce:

See "Interstate and Foreign Com-
Interstate commerce commission:

See "Interstate and Foreign Com-
Licensees, trespassers, intruders, etc., p.

Lien for charges:

Remedy for wrongful assertion of lien,
p. 1170.
Suit to enforce lien, p. 1170.
Live stock:

See "Carriers of Live Stock."

ACTIONS, cont'd.

Loss or injury to goods:

See "Loss or Injury to Goods."

See "Delivery by Carrier."
Palace cars and sleeping car compa-
nies, p. 3228.
Preferences and discriminations:

See "Preferences and Discrimina-

See "Carriers by Water."
Stipulations limiting time within which
suit must be brought:

See "Limitation of Liability."

See "Carriers of Live Stock."
Stoppage in transitu, p. 12.50.

See "Stoppage in Transitu."
Trespassers, p. 2542.
Warehouseman :

See "Carrier as Warehouseman."

Aider by subsequent pleadings and ver-
dict, p. 459.
Best and secondary evidence, p. 464.
Damages, p. 468:

See "Contracts."
Declaration, petition or complaint, p.

Demand, p. 456.
Evidence, p. 462:

Admissibility, p. 463.

Best and secondary evidence, p. 464.

Evidence as to net profits, p. 464.

Necessity for production of bill of
lading, p. 464.

Parol evidence, p. 464.

Reception of evidence, p. 464.

Relevancy and competency, p. 463.

Sufficiency of evidence, p. 465.

Usages and customs, p. 464.
Instructions, p. 466.
Issues, proof and variance, p. 460.
Limitation, in contract, of time for

bringing action, p. 455.
Nature and form of remedy, p. 455.
Necessary allegations, p. 456.
Parol evidence, p. 464.
Parties, p. 456. '

Persons who may sue, p. 456.
Pleading, p. 456.
Pica or answer, p. 460.
Presumptions and I)urden of proof, p.

Questions for jury, p. 462.
Questions of law and fact, p. 462.
Sufficiency of allegation, p. 458.
Theories of case, p. 459.
Usages and customs, p. 464.
Variance, pp. 461, 462.



ACT OF GOD, p. 731.

Act of God relieves carrier, p. 731.

Anticipated danger, p. 745.

Baggage, p. 3142.

Burden of proof, pp. 82.5, 3920, 3921,

Carriers by water, pp. 3898, 4017:
Burden of proof, p. 3921.
Demurrage, p. 3953.
Carriers of live stock, pp. 1309, 1337:
Climatic conditions, p. 1338.
Floods, p. 1338.
Liability for loss arising from act

of God, p. 1337.
Negligent exposure to inclement

weather, p. 1338.
Where act of God could have been

anticipated, p. 1337.
Where carrier's negligence concurs,
p. 1338.
Carriers of passengers, p. 1(579, 1690:
Delay, p. 1675.
Roadbed, pp. 1807, 1809.
Casus fortuitus, p. 736.
Changes in temperature, p. 740.
Collision, p. 737.
Contracts, p. 438.

Contracts for cars or other means of
Unavoidable accident, p. 449.
Definition, p. 735.

Delay in transportation or delivery, pp.
618, 619.
Goods destroyed by act of God. p.
Demurrage, p. 3953.

Duty to prevent act of God from caus-
ing injury, p. 746.

Care of ordinarily prudent person,

p. 747.
General rule, p. 746.
Duty to receive and carry, p. 249.
Earthquakes, pp. 736, 737.
Exclusive of human agency, p. 736.
Fire, p. 739.

Floods, pp. 620, 736, 737, 1338.
Freezing weather, p. 740.
General rule, p. 731.
Hot weather, p. 741.
Insanity of employee, p. 741.
Known to carrier, p. 619.
Liability for failure to deliver, p. 516.
Liability of carrier for delay, p. 619.
Liability of carrier where negligence

concurs with act of God, p. 741.
Lightning, pp. 736, 738.
Limitation of liability, pp. 953, 955.
Loss or injury to goods, p. 731:

Burden of proof, p. 825.
Negligence concurring with act of God,

p. 741.
Not preventable liy human care, p. 735.
Perils of the sea, p. 736.
Presumptions and burden of proof, pp.

825, 3920, 3921, 4017.
Proximate cause, p. 734.
Providential delay, p. 735.
Questions of law and fact:

What constitutes an act of God, p.
Severe weather, d. 019.

ACT OF GOD, coufd.
Snowstorm, p. 738.
Storms, p. 736.
Stranding, p. 737.
Tornado, p. 738.
Unprecedented storm, p. 738.
Vis major, p. 736.

What constitutes act of God, p. 735.
Where danger should have lieen antici-
pated, p. 745.


See "Public Enemy."

Jurisdiction, p. 3917.
Pleading, p. 3919.
\'ariance, p. 3919.


See "Declarations and Admissions.
Lien for charges.

Advertisement and description of
goods when sold for freight, p.
Limitation of liability:

See "Limitation of Liability."


Limitation of liability:

See "Limitation of Liability."


See "Contracts of Afifreightment."

See "Principal and Agent."

See "Principal and Agent."

vSee "Carriers of Passengers."
Bills of lading, p. 380.


Carriers of live stock, p. 1446.
Carriers of passengers, pp. 2633, 2660.
Connecting carriers, p. 3391.
Loss or injury to goods, pp. 808, 810.


See "Limitation of Liability."


See "Carriers of Live Stock."
Carriers of passengers, p. 1500.
Street railways, p. 1500.


See "Reports."


Carriers of live stock, p. 1447.
Connecting carriers:

See "Connecting Carriers."
Contracts, p. 460.
Delay in transportation or delivery, p.

Delivery by carrier:

Action for failure to deliver, p. 584.



ANSWER, cont'd.

Limitation of liabilit}-:

See "Limitation of Liability."
Loss or injury to goods, p. 808.
Notice of Loss and presentation of

claim, p. 1117.
Penalties for violations of regulations:
See "Penalties for Violations of


Interstate and foreign commerce, p.


Carriers of passengers, p. 3038.

Appellate proceedings, pp. 127, 12S.

Mode of procedure to obtain re-
view, p. 127.

Record on appeal, p. 128.

Time within which appeal maj' be
made, p. 128.
Notice of loss and presentation of claim:

Carriers of live stock, p. 1433.


Apportioning value of property and ex-
penses to determine reasonableness
of rates, p. 56.


See "Stations and Stopping Places."

Interstate and foreign commerce:

Arbitration between railroad com-
panies and employees, p. 3467.


False imprisonment and arrest:

See "False Imprisonment and Ar-


Carriers of passengers:

See "Carriers of Passengers."
Ejectment of licensees:

See "Licensees, Trespassers, In-
truders, etc."
Ejectment of passengers:

See "Ejectment of Passengers."
Ejection of trespassers:

See "Licensees, Trespassers, In-
truders, etc."
Evidence, pp. 2767, 2768.

Weight and sufficiency of evidence,
p. 2785.
Independent contractors, pp. 2072, 2073.
Instructions, p. 2957:

Damages, p. 3010.
Palace cars and sleeping car compa-
nies, p. 3209.

See "Carriers of Passengers."
Questions of law and fact, pp. 2868-


Bills of lading:

See "Bills of Lading."
Contracts of aflfreightment, p. 3877.


Lien for charges, p. 1165.
Stoppage in transitu, p. 1227.


Delivery by carrier:

Assumpsit for failure to deliver p


Bills of lading, pp. 366, 384.

Goods seized under legal process, p.

Interstate and foreign commerce, p.
Car owned by foreign railroad, p.

Indebtedness arising from inter-
state commerce, p. 3544.
Interstate commerce incidentally

affected, p. 3543.
Power of state, p. 3542.
Proceeding by attachment and gar-
nishment, p. 3542.
Under interstate commerce act, p.
. 3544.
Loss or injury to goods, p. 767.
Notice, pp. 577, 578.

Stoppage in transitu, pp. 1218, 1244.


Overcharge, 1204.
Collisions, p. 2015.
Taxation, p. 3588.

BAGGAGE, p. 3107.

Actions, p. 3183:

Admissibilitj' of evidence, p. 3191.

Damages, p. 3197.

Form of action, p. 3183.

Instructions, p. 3196.

Pleading and proof, p. 3185.

Presumptions and burden of proof,
p. 3186.

Questions of law and fact, p. 3194.

Right of action and parties, p.

Weight and sufficiency of evidence,
p. 3192.

Witnesses, p. 3189.
.\ct of God, p. 3142.
.■\gent, p. 3161:

See infra, "Extra Baggage and Spe-
cial Contracts."
Baggage agents, p. 3161.
Burden of proof:

See infra, "Presumptions and Bur-
den of Proof."
Carrier as warehouseman, p. 3168:

Baggage awaiting delivery to pas-
senger, p. 3168.

Baggage awaiting transportation, p.

Baggage retained by carrier for ac-
commodation, p. 3172.

Connecting carriers, p. 3178.



BAGGAGE, cont'd.

Carrier as warehouseman, cont'd.

Degree of care, p. 317-4.

Duties, p. 3173.

Expiration of reasonable time for
delivery, p. 3160.

Gratuitous bailee, p. 3174.

Liabilities, p. 3173.

Liability as warehouseman, p. 3160.

Negligence, p. 3174.

Reasonable time for delivery, pp.
3159, 3160.

Reasonable time for removal of
baggage, p. 3170.
• Special contract for storage, p.

What constitutes reasonable time
for removal of baggage, p. 3170.
Carriers by water, p. 4007:

Baggage detained by customs offi-
cers, p. 4010.

Contributory negligence of person
complaining, p. 4009.

Damages, p. 4011.

Delivery, p. 4007.

Delivery into exclusive custody of
vessel's officers, p. 4007.

Duty to provide stateroom door
with bolts and locks, p. 4009.

Duty to provide watchman, p. 4008.

Effects for which recovery allowed,
p. 4009.

Evidence, p. 4010.

Liability as innkeeper or insurer, p.

Liens, p. 4011.

Particular losses for which vessel
liable, p. 4009.

Passengers entitled to recover, p.

What constitutes delivery, p. 4008.
Charges, p. 3167.

Checks and receipts, and checking bag-
gage, pp. 3111, 3138:

As evidence of delivery to carrier,
p. 3139.

As evidence of ownership, p. 3139.

Baggage company receiving rail-
road check, p. 3140.

Connecting carriers, p. 3175.

Duties and liabilities of carrier, p.

Liability before purchase of ticket
or demand for check, p. 3135.

Liability before purchase of ticket
or demand for check, p. 3175.

Nature and functions of checks and
receipts, p. 3138.

Negligence as to checking baggage,
p. 3I75.

Refusal to pay unless given bag-
gage check, p. 2427.

Surrender of check, p. 3141.
Commencement of liability:

See infra, "Delivery to Carrier and
Commencement of Liability."
Commercial travelers, pp. 3121, 3149.
Concealment, p. 3152.
Connecting carriers, p. 3174:

Coupon ticket, p. 3177.

BAGGAGE, cont'd.

Connecting carriers, cont'd.

Effect of agreements between con-
necting lines and joint liability, p.

Intermediate carrier, p. 3179.

Last carrier, p. 3179.

Liability as warehouseman, p. 3178.

Liability of initial carrier, p. 3174.

Liability of intermediate or last
carrier, p. 3179.

Limitation of liability, pp. 3178,
3374, 3375.

Negligence as to checking baggage,
p. 3175.

Power to limit liability to its own
line, p. 3178.

Presumptions and burden of nroof

p. 3183. " ^

Release of connecting carrier, p.

Running own cars over connecting
^ lines, p. 3175.

Sale of through ticket, p. 3176.
Contributory negligence, pp. 3155, 3157,

Damages, p. 3197.

Declarations and admissions, p. 3191

Definition, p. 3113.

Delay, p. 3157.

Delivery by carrier:

Baggage agents, p.* 3161.

Carriers' agents, p. 3161.

Delivery to wrong person, p. 3159.

Duty to care for baggage until rea-
sonable time, p. 3160.

Notice of arrival, p. 3158.

Presumptions and burden of proof
pp. 3186, 3187, 3188.

Termination of liability, p. 3160.

Time for removal of baggage by
passenger, p. 3159.

Time, place and manner of deliv-
ery, p. 3158.

Delivery to carrier and commencement
of liability, pp. 3134, 4007:

Carrier's duty to take charge of
baggage, p. 3138.

Constructive delivery, p. 3134.

Delivered at night for next morn-
ing train, p. 3135.

General rule, p. 3134.

Goods awaiting transportation, p.

Liability before purchase of ticket
or demand for check, p. 3135.

Necessity of delivery, p. 3134.

Notice to carrier, p. 3136.

Place of delivery, p. 3136.

Time of delivery, p. 3134.

To whom delivery may be made, p.

What constitutes delivery in gen-
eral, p. 3137.

When liability commences, p. 3134.
Dogs, p. 3122.
Drummers, pp. 3121, 3149.



BAGGAGE, (•(-;//'(/.

Duty of carrier to transport, pp. 3109,
Effects in custody of passenger, p.

General rule, p. 3109.
Duty to care for baggage until reason-
able time for removal, p. 3160.
Effects in custody of passenger, p. 3110.

Admissibility of evidence, p. 3191.
Evidence admissible under plead-
ings, p. 3185.
Weight and sufficiency of evidence,
p. 3192.
Exemplary damages, p. 3197.
Extra baggage and special contracts,
pp. 3132, 3152:
Authority of carrier's agents, p.

General rule, p. 3132.
Extra compensation, p. 3152.
Fire, p. 3174.
Free pass:

Limitation of liability, p. 3163.
Household goods, p. 3122.
Immigrants' effects, p. 3118.
Instructions, p. 3196.

See infra, "Liability as Insurer."
Jewelry for personal use, p. 3123.
Jewelry for sale, p. 3125.
Larceny, pp. 3143, 3147.
Liability as insurer, p. 3141:

Absence of negligence, p. 3142.
Act of civil authorities, p. 3143.
Act of God, p. 3142.
Act of public enemy, p. 3143.
Contributory negligence of passen-
ger, p. 3143.
Exceptions, p. 3142.
Excuses^ p. 3142.
General rule, p. 3141.
Loss by theft, p. 3143.
Spontaneous combustion of other
baggage, p. 3143.
Liens, p. 3167.

Limitation of liability, p. 3161:
Agreed valuation, p. 1058.
Amount of recovery, p. 3162,
Carriers by water:

See "Carriers by Water."
Connecting carriers, pp. 3178, 3374,

3375. -
Construction and operation of lim-
itation, p. 3166.
Free passes, p. 3163.
General notice, p. 3164.
Losses caused by negligence, p.

Manner of limiting liability, p. 3163.
Necessity for consideration, p. 3166.
Power to limit liability, p. 3161.
Provisions in check, p. 3164.
Provisions in ticket, p. 3164.
Time of notice and assent, p. 3165.
Loss or injury, p. 3141:

See infra, "Delivery to Carrier and
Commencement of Liability."

BAGGAGE, cuufd.

Loss or injury, cont'd.

Baggage not carried as incident to
transportation of passenger, p.
Contributory negligence of passen-
ger, p. 3155.
Duty to disclose nature and value
and effect of concealment, p. 3152.
Effect of acceptance without knowl-
edge of nature of property, p.
Effect of nonpayment of compen-
sation, p. 3144.
Effect of regulations known to pas-

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 183 of 214)