Thomas Johnson Michie.

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

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necessity or charity, as the duty of caring for the goods after the delivery to the
warehouse of the connecting carrier is a work of necessity, and excepted by the

Failure of Initial Carrier to Exercise Option as to Choice of Connect-
ing Carrier. — A delivery at a place where a connecting carrier usually receives
its freight is not sufficient to discharge the initial carrier from liability, where,
under the terms of the contract, if it has a choice as to the selection of routes
or carriers, and has not finally and irrevocably exercised such option or choice,
although it has notified a certain carrier of the delivery. ^^

Notice as Dispensing with Delivery. — Whatever may generally be the ef-
fect of a notice to a connecting carrier, upon the cjuestion of terminating or alter-
ing the liability of a preceding carrier for the goods, it is quite clear that it has
no efifect in diminishing the liability until actual delivery in a case where the pre-
ceding carrier still continues to have full control over the goods and has a choice
as between connecting carriers, and may, notwithstanding such general notice,
deliver the goods under certain circumstances to another carrier for further
transportation. Until actual delivery in such case, the preceding carrier is not
divested of his liability. ^^

Sufficiency of Notice of Delivery or Readiness for Delivery. — Notice
by the initial carrier to the succeeding carrier, within a few minutes after the
arrival of a shipment at the place where the two roads connect, that the cars in
which the shipment was made have been placed on the receiving tracks of the
succeeding carrier, is a sufficient notice of delivery, it not being essential to no-
tify the succeeding carrier in advance as to when the shipment will arrive

the arrival of its boats in the night, upon
a particular place in the depot, where
they were taken by the railroad company
the next morning, both companies hav-
ing equal possession of the depot. Freight
received by the steamboat company for
delivery to the railroad company was
landed in the depot and at the place in
question during the night of Saturday,
and was burned with the depot in the
afternoon of Sunday following, the rail-
road company having done no act in the
meantime accepting delivery. Held, that
the steamboat company had delivered
the goods, and was not liable for the
loss of them. Converse v. Norwich, etc.,
Transp. Co., 33 Conn. 16G.

91. Delivery on Sunday. — Powhatan
Steamboat Co. v. Appomattox R. Co.
(U. S.), 24 How. 247, 16 L. Ed. 682;
United States v. Powell (U. S.), 14 Wall.
493, 20 L. Ed. 726.

92. Failure of initial carrier to finally
exercise option as to connecting carrier.
— A clause in a bill of lading by which
cotton was to be shipped over the line
of a railroad company to be by it deliv-
ered to a steamship company gave the
railroad company the right to ship by any
steamer they might select, provided they
deemed it necessary to ship by some
steamer or line other than that named in
the bill of lading. Another clause pro-
vided that the liability of the railroad
company should determine on a delivery

to the steamship, the steamship com-
pany, or on the steamship pier. The
property was delivered at the end of the
carrier's line, on a pier belonging to it,
and from which no freight could be taken
by the steamship company except
with a permit or order from the railroad
company, and the custom was that the
property had to be delivered within the
reach of the ship's tackle before the ship
was called upon to take it. The steam-
ship company was not a regular connect-
ing carrier with the railroad company
but carried goods only under special con-
tract, and under an agreement between
them the steamship company was not to
take the property until they sent a ship
to the pier for that purpose. It was held
that a delivery by the railroad company
on the pier was not a delivery to the
steamship company so as to relieve it
from liability for loss by fire, although
the railroad company had notified the
steamship company that the property
was at the pier awaiting or ready for de-
livery, since, even after such notification,
the railroad company might select an-
other steamer by which to send the prop-
erty. Texas, etc., R. Co. v. Callender, 183
U."S. 632, 46 L. Ed. 362, 22 S. Ct. 257.
See also, Texas, etc., R. Co. v. Reiss, 183
U. S. 621, 46 L. Ed. 358. 22 S. Ct. 253.

93. Notice as dispensing with delivery.
—Texas, etc., R. Co. v. Callender, 183 U.
S. 632, 46 L. Ed. 362, 22 S. Ct. 257.



§§ 3607-3610

or that the train is late.''-* The notice of the arrival of goods and readiness for
delivery need not actually be brought home to the knowledge of the succeeding
carrier; but where the uniform custom of doing business between the carriers
is for the initial carrier to deposit such notice in a special box in its own depot,
to which the succeeding carrier has constant access and is accustomed to look
for such notices, such deposit is sufficient. ^^

§ 3608. Time of Delivery. — Where a carrier receives goods for transporta-
tion beyond its own line, it is bound to deliver them to a connecting carrier within
a reasonable time ; ^^ and what is a reasonable time must be determined from the
length of the journey, the usual time, the weather, the nature of goods trans-
ported, etc.°'

§ 3609. Capacity in Which Carrier Acts in Making Delivery.— A car-
rier of goods acts as agent of the shipper or consignee in transferring them to
another carrier, and not as the latter's agent. ^'^

§ 3610. Right to Determine to What Connecting Line Delivery Shall
Be Made. — The weight of authority supports the rule that if a carrier agrees to
carry beyond its own line, it may, in the absence of a contract to transport the
shipment over a specified line or lines,^'^ deliver the goods for carriage by such
line or lines as it may choose to select. i But in Missouri it has been held that a

94. Sufficiency of notice of delivery. —
Louisville, etc., R. Co. v. Bourne. 15 Ky.
L. Rep. 44.-.

95. Sufficiency of notice of arrival and
readiness for delivery. — Mills r. Michi-
t(an Cent. R. Co.. 4.j X. Y. 622, 6 Am. Rep.

96. Delivery must be made within a
reasonable time. — St. Louis, etc., R. Co.
V. Coolidee, 73 Ark. 112, 83 S. W. 333,
108 Am. St. Rep. 21, 67 L. R. A. 555;
Chesapeake, etc., R. Co. v. O'Gara, etc.,
R. Co., 144 Ky. 561, 1.39 S. W. 803, so
holding as to a through shipment of coal.

97. Mode of determining what is a
reasonable time. — St. Louis, etc., R. Co.
V. CoolidRe, 73 Ark. 112, 83 S. W. 333, 67
L. R. A. .-..-..-), 108 Am. St. Rep. 21.

98. Capacity in which carrier acts in
making delivery. — Seaboard, etc., Rail-
way f. Friedman, 128 Ga. 316, 57 S. E.
778; Marquette, etc., R. Co. v. Kirkwood,
4.") Mich. .■>], 7 \. VV. 209, 40 .Am. Rep.

Where a shipper shipped cattle to V.,
at which point the first carrier connected
with defendant's line of road, and defend-
ant received such cattle in ^ood order
from the first road, tiie first road was the
aRc-nt of the shipper for the purpose of
delivering? to defendant carrier the prop-
erty to l)c transported from V. Scalioard,
etc.. Railway f. Kriedman, 57 S. E. 778,
12H r.a. .!)(;.

Wliere plaiiuiff gave a local exjjress
company certain household f,'oods for
flelivery tf) a carrier, to Ije flelivercd to a
named consignee in another state, the
local express company was plaintiff's
agent for delivering the box for shi|)-
mcnt aiul for the giving of informatif)n
necessary to the shipment. Harrington

4 Car 11

z: Wabash R. Co.. 122 N. W. 14, 108
Minn. 257, 23 L. R. A., N. S., 745.

99. Contract of transportation over a
specified line or lines. — A connecting
carrier, in receiving a car load of freight
under, a contract of transportation over
several specified lines, owed a contract
duty to the shipper not to divert the car
without her consent. Drake 7'. Nash-
ville, etc., R. Co., 125 Tenn. 627, 148 S.
W. 214.

Where a carrier receives goods with
an express understanding that they are
not to be forwarded from a certain point
on its line unless by a specified line of
steamers it is not justified in forwarding
them by another line. Johnson v. New
York Cent. R. Co., 33 N. Y. 010, 88 Am.
Dec. 416, reversing 31 Barb. 196.

An express company receipted for
goods left with them to be forwarded by
a particular vessel, and, that vessel being
withdrawn, sent them by another, which
was lost. Held, that the company Avas
liable for the loss. Goodrich v. Thomp-
son, 44 N- Y. 324.

Where the initial carrier failed to de-
liver the shipment to tiie connecting car-
rier agreed on, l)ut delivered the same to
another carrier, the initial carrier con-
tinued liable as though the shipment re-
mained in its possession, and it was re-
sijonsible for the act of tlic connecting
carrier selected by it. Cincinnati, etc., R.
Co. r. Pendleton, 96 S. W. 434, 29 Ky.
L. Rep. 721.

1. Selection of routes by initial carrier
where it contracts for through carriage.
— Souliiern I'ac. Co. ;•. Interstate Com-
merce Connn.. 200 U. S. 5.36, 50 L. h'd.
5H5. 26 S. Ct. 330; .Atchison, etc.. R. Co.
I'. i:)enver, etc., K. Co., 110 U. S. 667, 28

§§ 3610-3611



shipper of goods has the right to designate over what connecting lines his goods
shall be shipped, and the first carrier is bound to obey the directions of the ship-
per in this respect.2 In ]\Iassachusetts it has been held that if it be the general
custom of a carrier to forward by sailing vessels all goods destined beyond the
end of its line, it is not liable for not forwarding a particular article by a steam
vessel, unless the direction to do so be clear and unambiguous.^ An initial car-
rier is liable to the shipper for loss from its selection of an insolvent company
as the connecting line in a through shipment.'*

§ 3611. Duty of Initial Carrier Where Succeeding Carrier Refuses ta
Receive Goods, or Delivery to It Is Impracticable. — If the connecting car-
rier designated in the contract of shipment refuses to receive the goods, or de-
livery to it is impracticable, it is the duty of the initial carrier to notify the
consignor so as to enable him to give further shipping directions, ^ unless the prop-
erty is of such a perishable nature that the taking of time necessary to give no-
tice would probably injure it.^ Where a carrier has transported goods over its

L. Ed. 291, 4 S. Ct. 185; Louisville, etc.,
R. Co. z\ West Coast Naval Stores Co.,
198 U. S. 483, 49 L. Ed. 1135, 25 S. Ct.
745; Steidl v. Minneapolis, etc., R. Co.,
94 Minn. 233, 102 N. W. 701. See, also.
Van Santvoord v. St. John (N. Y.), 6
Hill 157, reversing 25 Wend. 660.

"At common law, a carrier is not
bound to carry except on his own line,
and we think it quite clear that if he
contracts to go beyond he may, in the
absence of statutory regulations to the
contrary, determine for himself what
agencies he will employ. His contract
is equivalent to an extension of his line
for the purposes of the contract, and if
he holds himself out as & carrier beyond
the line, so that he may be required to
carry in that way for all alike, he maj'
nevertheless confine himself in carrying
to the particular route he chooses to use.
He puts himself in no worse position, by
extending his route with the help of
others, than he would if the means of
transportation employed were all his
own. He certainly may select his own
agencies and his own associates for do-
ing his own work." Atchison, etc., R.
Co. V. Denver, etc., R. Co., 110 U. S. 667,
28 L. Ed. 291, 4 S. Ct. 185; Post z: South-
ern R. Co., 103 Tenn. 184, 52 S. W. 301,
55 L. R. A. 481.

Where a bill of lading for the ship-
ment of goods to a point bej^ond the ter-
minus of the line of the initial carrier is
accepted before shipment by a shipper,
the law imports into the contract, where
it is silent, the provision that the carrier
may select any customary and reasona-
bly safe and direct route by which to for-
ward the goods from the terminus of its
line. Snow v. Indiana, etc., R. Co., 109
Ind. 422, 9 N. E. 702. See, also, Chicago,
etc., R. Co. z: Woodward, 164 Ind. 360,
72 N. E. 558. 73 N. E. 810.

2. Right of shipper to designate route,
— Wiggins Ferrv Co. z'. Chicago, etc., R.
Co., 128 Mo. 224, 37 S. W. 568, 30 S. W.

If the initial carrier disobeys the ship-
per's directions as to the connecting lines
over which his goods shall be shipped it
will be liable as for a conversion. Wig-
gins Ferry Co. z'. Chicago, etc., R. Co.,
128 Mo. 224, 27 S. W. 568, 30 S. Vv''. 430.

3. General custom to forward by sail-
ing vessels. — Simkins r. Norwich, etc..
Steamboat Co. (Mass.). 11 Cush. 102.

4. Liability of initial carrier for select-
ing insolvent company as connecting line.
—Post z'. Southern R. Co., 52 S. W. 301,
103 Tenn. 184, 55 L. R. A. 481.

5. Duty of initial carrier where succeed-
ing carrier refuses to receive goods or
delivery to it is impracticable. — Southern
R. Co. V. Wallace, 175 Ala. 72, 56 So. 714;
Fisher v. Boston, etc., R. Co., 99 Me.
338, 59 Atl. 532, 68 L. R. A. 390, 105 Am.
St. Rep. 283.

A carrier whose directions were to for-
ward goods by a certain steamboat line
should, when that line refused them,
have held the goods until communication
was had with the shipper, who was con-
veniently within reach, by mail or tele-
graph. Johnson v. New York Cent. R.
Co., 33 N. Y. 610, 88 Am. Dec. 416, re-
versing 31 Barb. 196.

Where the second carrier, under a
contract for shipment of freight over sev-
eral lines, refuses to carry it over the
route specified, it is the initial carrier's
duty to receive the freight back and call
upon the shipper for further instructions,
in the absence of which the freight should
be returned. Drake v. Nashville, etc., R.
Co., 125 Tenn. 627, 148 S. W. 214.

An intermediate carrier, who receives
goods to be carried to a point short of
their final destination, is bound only to
use reasonable diligence to secure fur-
ther transportation by tendering them to
the connecting line, and, if acceptance be
refused, then to notify the consignor or
consignee without unreasonable delay,
and store or otherwise care for the goods
while awaiting instructions. Having
done this, its liability as a carrier will



5§ 3611-3613

own lines to a point of intersection with the connecting carrier, and is unable to
deliver them to such carrier without fault on its part, it has the duty as a for-
warder to exercise reasonable care to save loss of the goods or unnecessary costs
to the owner." Where goods can be properly cared for by the carrier until the
shipper can be communicated with, it is not justified in forwarding them by an-
other route than that designated in the contract of shipment, even though there
is a stipulation in the contract that every carrier in case of necessity may forward
the goods by any railroad between the place of shipment and the place of desti-
nation.^ Where, by common consent of the railroad companies wdiose lines cen-
tered in a city, it was customar)', when live stock had to be changed from one
route to another, or from one car to another, to deliver it to a certain stockyards
company for this purpose, a delivery by the initial carrier to such company was
not a delivery to the connecting line, so as to relieve the initial carrier from its
duty to notify the shipper of the inability of the connecting line to forward the
stock without delay. ^

§ 3612. Waiver of Delivery by Succeeding Carrier. — A complete de-
livery by the initial carrier may be waived by the succeeding carrier, but such
waiver while binding on the latter will not bind the shipper or owner of the
goods. ^"

§ 3613. Transmission to Succeeding Carrier of Consignor's Instruc-
tions. — A common carrier who receives goods under an agreement to trans-
port them over the whole or any part of his own route, and then to forward
them to a destination beyond, acts in the twofold capacity of carrier and for-
warder. In the latter capacity, he acts as agent of the consignor, and as such is
bound to transmit with reasonable exactness, to the next succeeding carrier, the
instructions of his principal. ^^ If these instructions be \vithout restriction as

cease, and liabilitj' as a warehouseman be
substituted. Judgment 116 Fed. 235, af-
firmed in Buston v. Pennsylvania R. Co.,
119 Fed. 808, ,-)6 C. C. A. 320.

6. Southern R. Co. v. Wallace, 175 Ala.
72, 56 So. 714.

7. Fisher v. Boston, etc., R. Co., 59 Atl.
532, 99 Me. 338, 68 L. R. A. 390, 105 Am.
St. Rep. 283.

8. Fisher v. Boston, etc., R. Co., 59 Atl.
532, 99 Me. 338, 68 L. R. A. 390, 105 Am.
St. Rep. 2'<3.

9. Facts not relieving carrier from duty
to notify shipper of succeeding carrier's
inability to forward stock. — Louisville,
etc., R. Co. f. I'ariners', etc., Comm.
Firm, 107 Ky. 53, 52 S. W. 972, 21 Ky. L.
Rep. 70«.

10. Waiver of delivery by succeeding
carrier. — While nn at-cciitanci.- \>y a con-
ncctitit; carrier of a delivery by the ini-
tial carrier, which docs not put the con-
necting,' carrier in full possession of the
Koods, can release the initial carrier from
the full duty which he owes the shipi)er
of placing the goods in the actual con-
trol <jf the succecfling carrier, the latter
may bind himself by accepting a less
delivery than this. Union Dray Line Co.
T-. Hurt, 30 C,a. 7'JS.

It was the custom of a steamboat
traiis])ortatii»n company to place freight,
carried by it to a certain j)oint, in a
warehouse there owned by a railroad,
nnd then to give the latter a waybill,

which the railroad accepted as a correct
statement. Held, that it was competent
for the railroad to thus waive its usual
requirement for a count of the freight as
it was loaded on its cars. Barter & Co.
V. Wheeler, 49 N. H. 9, 6 Am. Rep. 434.

An understanding or custom between
connecting railroads, that when the cars
of one road are switched off upon the
track of the other, the said other road
is responsible for the freight, although
receipts are not given till the freight
has been examined, checked, and found
all right, or the deficiency noted, is a'
good and valid custom as between the
roads, but under § 2058 of the Georgia
Code, does not bind the owner of the
goods. The last company receipting for
the goods "in good order," is responsible
to the owner if they are lost or damaged
Ijefore examination and transfer to the
connecting road. Wallace z'. Rosenthal,
40 r.a. Il'.i.

11. Transmission to succeeding carrier
of consignor's instructions, -liritrgs v.
Boston, etc., R. Co. (Mass.), G Allen 246,
H3 Am. Dec. 626; Little Miami R. Co.
V. Washburn, 22 O. St. 324.

A railroad company first receiving
goods, which takes charge of them to be
carried over its own road and to be for-
warded to a person i)eyond its own
means f)f tran'^])<)rtalioii, tlie goods being
directed to a i)articular consignee, at the
place wlure the goods are first to be de-

;§ 3613-3614



to the subsequent route, intermediate consignment, or mode of transit of the
goods, but are in general terms to forward them to a designated destination, he
will have discharged his duty as forwarding agent, by accompanying their de-
livery in good order to the carrier of the next usual route, of transit, with the
like general instructions, in terms sufficiently explicit and unambiguous to in-
form him of their ultimate destination. Rut if the instructions of the consignee
be special and restrictive, the carrier will not have performed his duty as for-
warding agent if he shall have neglected or omitted to transmit, with the de-
livery of the goods to the next carrier, any material or substantive part of such
special instructions. Whence it follows, as a necessary consequence, that he
shall stand responsible for, and make good, any loss to which such negligence
or omission shall have contributed.^- Marks or labels on the packages, will not
supply the omission of such instructions from the accompanying shipping bills,
where they are shown not to have come to the actual knowledge of the next
succeeding carrier, or his agent, charged with the duty of receiving and for-
warding such bills. ^'^ Where a shipper delivers to a carrier, with the goods
shipped, written instructions to accompany the goods with the statement of the
shipper's charges, the carrier is bound by the instructions and liable for his
failure to conform to them.^^ A carrier who acts as the forwarding agent of the
owner of goods, in giving directions by waybills or otherwise to the successive
lines of transportation over which they are to be carried beyond the termina-
tion of his own route, is responsible as such forwarding agent only for the want
of reasonable diligence and care.^^

§ 3614. Duty to Receive and Transport Cars and Freight Delivered
by a Connecting Carrier. — A carrier is bound to receive and transport cars
and freight delivered to it by a connecting carrier, ^*^ if such cars are not de-
fective, or from construction unreasonably hazardous ; ^'^ and this it must do

livered and transshipped, must deliver the
goods to such consignee with notice of
the instructions of the consignor to have
them forwarded to the place of their ul-
timate destination. This notice should
be given in a reasonable time after the
arrival of the goods at the point of re-
shipment, and by some agent and serv-
ant of the company particularly charged
with the performance of this duty.
Selma, etc., R. Co. v. Butts, 4.S Ala. 385,
94 Am. Dec. 694.

12. Little Miami R. Co. v. Washburn,
22 O. St. .324.

13. Little Miami R. Co. v. Washburn,
22 O. St. 324.

14. Hutchings v. Ladd, 16 Mich. 493.

A forwarder who receives goods un-
der agreement to ship them to an ex-
press company, with instructions for such
company that it should not deliver the
goods to the consignee until he had
paid the price, does not comply with the
contract by sending the instructions in
a sealed envelope separate from the bill
of lading. Hutchings z'. Ladd, 16 Mich.

15. Northern R. Co. v. Fitchburg R.
Co. (Mass.), 6 Allen 254.

16. Duty to receive and transport cars
and freight delivered by a connecting
carrier. — Pittsburg, etc., R. Co. v. Chi-
cago, 242 111. 178, 89 N. E. 1022; McMil-

lan v. Chicago, etc., R. Co., 147 Iowa'
596, 124 N. W. 1069, 35 R. R. R. 396, 58
Am. & Eng. R. Cas., N. S., 396; Chicago,
etc., R. Co. V. Curtis, 51 Neb. 442, 71 N.
W. 42, 66 Am. St. Rep. 456; Andrus v.
Columbia, etc., Steamboat Co., 47 Wash.
333, 92 Pac. 128.

A carrier is bound to receive cars of
other carriers for transportation over
its line when requested, and occupies the
same relation to such cars as to ordinary
freight, and is liable to the owner in the
same manner as to any other shipper.
Judgment 144 111. App. 293, affirmed in
Pitt'sburg, etc., R. Co. v. Chicago, 89 N.
E. 1022, 242 111. 178.

A merchant ordered goods shipped to
him over certain connecting lines. When
the goods arrived at the last connecting
point, the last connecting line had sold
out its business to its sole competitor,
which received the goods. Held, that
the fact that the company had gone out
(jf business did not render the shipment
completed when it arrived at the last
connecting point, but its successor had
authority, and it was its duty to forward
the goods to their destination; there be-
ing no other company that could carry
them. Andrus v. Columbia, etc., Steam-
boat Co., 47 Wash. 333, 92 Pac. 128.

17. Chicago, etc., R. Co. v. Curtis, 71
N. W. 42, 51 Neb. 442, 66 Am. St. Rep.



§ 3614

without waiting for the making of a new contract, especially where it did not
advise the agent of the shipper that it would not transport the cars until a new
contract was made.^"^ The duty of a railroad company to receive and transport
cars and freight delivered to it hy a connecting carrier is in many of the states
enforced by constitutional enactment or statute.^'-* A carrier's statutory duty to
receive the cars of other owners does not oblige it to move them except in their
own routine and in the ordinary course of business.^" Under a statute requiring
every railroad company doing business in the state to receive all freight and
passengers coming to it from a connecting line, and going to points on its line
or beyond, and to transport the same to destination or the next connecting line,

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 31 of 214)