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23. Delay caused by transactions be- criwucting carrier. Texas Cent. R. Co.

tween terminal carrier and consignee.— 7'. O'l.oughlin, 84 S. W. 1104, 37 'I'cx. Civ.

Hams T. Mnineapolis. etc., R. Co., 73 N. App. 040.

Y. S. 159, 30 Misc. Rep. 181. Where the cars in which the cattle



§ 3738 CARRIERS. 3358

stock is transferred to a connecting line, without affording any opportunity for
feeding or watering the stock, though requested to by the shipper. 2**

Part of Injuries Occurring Before Delivery to Succeeding- Carrier. —
Tliough the bill of lading issued by the first of two connecting carriers exempted
it from liability for damages not occurring on its own line, it can not complain
that it was held jointly liable with the other connecting carrier for all the dam-
age to freight, which was shown to be injured at the time it was delivered to the
second connecting carrier, where the first carrier did not ofifer to show what pro-
portion of the damage was sustained on its own line.-'

Nondelivery by Connecting Carrier. — An initial carrier issuing a bill of
lading stipulating for the carriage of goods to their destination if on its road,
otherwise to deliver the same to another carrier on the route to said destination,
and providing that no carrier shall be liable for loss not occurring on its own
road, nor after the property is ready for delivery to the next carrier or con-
signee, is not liable for the failure of the connecting carrier to deliver the goods. -^

Conversion of Shipment by Connecting Carrier. — A railroad company
which contracts for the shipment of goods to a point beyond its own line with
one who knows that the goods must be delivered to a connecting line, with the
agreement that, after the goods leave its road, it is to be held as a forwarder
only, is not liable for a conversion of the goods by the connecting road.-'^*

Liability Limited to Protection of Through Rate of Freight for Cattle.
— Where a contract for the transportation of cattle by defendant railroad com-
pany over its own and connecting lines for a through freight exempts defendant
from liability "for anything beyond" its line, "excepting to protect the through
rate of freight named therein," defendant is not liable for conversion of the
cattle, on refusal of a connecting carrier to deliver the cattle unless a greater
freight rate is paid.^"

§ 3738. Effect of Specific Exceptions to General Exemptions. — A car-
rier remains liable as at common law for a loss of cotton by fire while in its pos-
session, although it was "ready for delivery" to the next carrier, or was awaiting
further conveyance within the meaning of clauses in the bill of lading modifying
its common-law liability for the loss of goods under such circumstances, where
such bill of lading also declares that "cotton is excepted from any clause herein

were originally loaded were not to be re- was a feeding point, but the stock was
bedded until the}' reached a point beyond immediately transferred to the connect-
the initial carrier's terminus, the fact that ing carrier, as had been previously agreed
the connecting carrier accepted the cars on by the two lines. Before reaching the
from the initial carrier in the condition next station, the animals had suffered so
they were in with reference to bedding greatly that their value was permanently
did not make the cars part of the con- lessened. The evidence showed that, if
necting carrier's means of transportation, they had been cared for at H., they would
so as to render it liable for damages not have suffered. Held, that defendant
thereafter occurring by reason of im- was liable, though the injury did not de-
proper bedding, in such sense as to re- velop until after the stock had passed
lieve the initial carrier from liability for from its line. Galveston, etc., R. Co. v.
its negligence in failing to properly bed Herring (Tex. Civ. App.), 24 S. W. 939.
the cars. Texas Cent. R. Co. v. O'Lough- 27. Part of injuries occurring before
lin, 84 S. W. tl04, 37 Tex. Civ. App. G40. delivery to succeeding carrier.— Gulf, etc.,

26. Galveston, etc., R. Co. v. Ivey (Tex. r Qq ^,. Edloff (Tex. Civ. App.), 34 S.

Civ. App.); 23 S. W. 321. W. 410.

Failure to afford opportunity to feed gg Nondelivery by connecting carrier,

and water stock.-Tn a contract for ship- _American Hav Co. v. Bath, etc., R. Co ,

ment of stock, defendant company hm- So N Y ^ 34'l

ited its liability to occurrences on its own .. ' ".r, ' •"" ' r i • ^ u .,..

line, which terminated at H. The evi- . 29- Conversion of shipment by connect-

dence showed that the stock was negli- "^S ''^"}^''-~'^\''^^-'-l^'^^^ .""o m \v ff"

gently switched around in cars for sev- Cent. R. Co., 101 Mich. 264, 59 N. \\ . 612.

eral hours before being started; that, be- 30. Liability limited to protection of

fore reaching H., plaintiff notified de- through rate of freight for cattle.— Little

fendant's agents that the stock would Rock, etc., R. Co. v. Odom, 38 S. W. 339,.

need food and water at that place, which 63 Ark. 326.



3359



LIMITATION OF LIABILITY,



§§ 3738-3740



on the subject of fire, and the carrier shall be liable as at common law for loss
or damage of cotton by fire," since this specific clause takes eiTect to the exclu-
sion of general clauses containing matters of general exemption. "^

§ 3739. Liability of Succeeding- Carrier.— Injuries Occurring- before
Shipment Delivered to Defendant Carrier. — If the property is shipped un-
der a contract limiting each carrier to its own line, a carrier is not liable for any
injury thereto inflicted before it reached its line.^-

§§ 3740-3743. Termination of Liability of Initial or Prior Carrier—
§ 3740. Delivery to Succeeding Carrier.— Where a bill of lading limited
the carrier's liability to its own line, and required delivery to another carrier on
the route to destination, if the destination was not on the initial car-
rier's own line, such carrier's duty might be discharged by delivery to
the connecting carrier designated in the bilbo's in the same order in which
the preceding carrier received them,^^-* or, 'if none be designated and there
were several, by a delivery to a proper connecting carrier on the route
"in the usual and customary way-" ^5 Where a railroad or other common
carrier receives goods consigned beyond the terminus of its own road, with
the agreement to deliver to a connecting line, the contract of shipment im-
])Oses not only the duty to transport safely over its own road, but to safely de-
liver to the next connecting carrier. The duty assumed, in other words, is both
to safely carry and to safely deliver.^e This duty is performed and the liability
of the company, as a common carrier, ceases upon the delivery, with proper in-
struction, to the next carrier at the end of its route.^'



31. Effect of specific exceptions to gen-
eral exemptions. — Judgment, Texas, etc.,
R. Co. r. Callendar, 98 Fed. 5.38, 39 C. C.
A. 154, affirmed in 22 S. Ct. 2.'i7, 183 U S
632. 4G L. Ed. 362.

32. Injuries occurring before shipment
delivered to defendant carrier.— Ct^orgw.
— I5ell Bros. !■. Western, etc., R. Co., 125
Ga. 510, 54 S. E. 532.

^ Pennsylvania. — Goods were shipped at
New Orleans for Pittsburg, with privilege
of transshipment on the way, and provi-
sion was made in the bill of lading that
the owners of the second boat should not
be liable for damages on board the first.
The goods were injured on board the lirst
boat, but the owners of the last boatie-
fused to deliver them until the whole
Ireight was paid. Held, that they were
not thereby made liable, in an action
of tort, for damage caused on board the
fir.st boat. Wilson v. Harry, 32 Pa. 270.
Texas.— GuM, etc., R. Co. v. Malone
n ex. Civ. Ai)f).), 25 S. W. KiTT.

33. Delivery to succeeding carrier. — .-lla-
^■(/HK/.— Southern R. Co. v. Goldstein Bros.,
140 Ala. 38fi, 41 So. 173.

Wlicre the receipt or bill of lading of
gof.ds marked to a certain point contains
a valid contract to the effect that the
■goods are to be transported over the line
of the defendant's road, to a certain sta-
tion, and there delivered, in good order
to another company, to be transported to
the place of destination, and that the lia-
bility of defendant, as a common carrier,
shall cease when the goods are so deliv-
ered at that station to the other com-
pany, the responsibility of the company.



as a common carrier, ends with the de-
livery of the goods to the next carrier at
the station named in the receipt. Field
V. Chicago, etc., R. Co., 71 111. 458.

Nczv York. — Where a shipment is made
over connecting lines under a bill of lad-
ing reciting that "the shipper, in accept-
ing it, agrees to all its terms and condi-
tions," and that in case of loss "that com-
pany shall alone be held answerable
therefor in whose actual custody the
goods may be at the time of the happen-
ing of such loss." the initial carrier is not
liable after a delivery of the goods at
the end of its line. Ricketts v. Baltimore,
etc., R. Co., 61 Barb. 18, 4 Lans. 446, af-
firmed in 59 N. Y. 637.

34. Moody v. Southern Railway, 79 S.
C. 297, 60 S. E. 711.

35. Southern R. Co. v. Goldstein 15ros.,
41 So. 173, 146 Ala. 386.

36. Alabama, etc., R. Co. v. Thomas, 89
Ala. 294, 7 So. 762, 18 Am. St. Rep. 119;
S. C, S3 .Ala. 343, 3 So. 802; Wells v.
Thomas, 27 Alo. 17, 72 Am. Dec. 228.

37. Where an express company agrees
to forward a package to a point beyond
the terminus of its route, the contract
expressly limiting its liability to that of
a forwarder, and thrnnL'h charges not
having been paid, the liability of the com-
pany, as a common carrier, ceases upon
its delivery, with i)roper instructions, to
the next carrier, al the end of its route.
Illinois Cent. K. Co, ;•. iM-ankcnberg. 54
III. 88, 5 Am. Rep. 92; Reed v. ITnitcd
Slates Exp. Co., 48 N. Y. 462, 8 Am. Rep.
5i;i.



§ 3740



CARRIERS.



3360



Degree of Care Required. — In so far as the carrier acts as a mere forwarder,
assuming as agent of the consignor to have the goods forwarded by a connecting
line, he is Hable only as bailee for the exercise of ordinary care, or such care as
persons of ordinary prudence exercise in reference to their own property un-
der like circumstances."^

Transportation over Intermediate Short Line. — Where goods are re-
ceived by a carrier under a contract restricting the liability of the company to
their delivery at its terminus, it is then bound to deliver them there with all con-
venient speed, according to the usual course of business, to the next carrier; but
if there be none ready at the terminus to receive the goods and forward them
along the proper route, the company is not bound to transport the goods beyond
its terminus upon any link, however short, of the connecting route, unless its
established usage imply such undertaking. ^'-^ But where a railroad company re-
ceives goods consigned beyond its own line, with an agreement to deliver to
a connecting line, the liability of the first road or carrier does not necessarily
terminate with the arrival of the goods at its own terminal depot, although its
responsibility as carrier may terminate there, if there is no further duty of car-
riage, in order to make the connection with the other road over which the goods
are to be transported. If there be any duty to carry the goods over an inter-
mediate short line, connecting its own terminal depot with the other connecting
road, in order to complete the act of delivery, its liability on the intermediate
line obviously is that of a carrier, and not of a forwarder, especially if this line
be a part of its own road.'*"

Notice to Succeeding Carrier of Arrival. — A shipment unloaded by a con-
necting carrier at its pier without giving any notice of its arrival to the succeed-
ing carrier does not await further conveyance, within the meaning of a clause
in the bill of lading relieving the carrier from liability other than as a ware-
houseman "while the said property awaits further conveyance."^*



38. Degree of care required. — Alabama,
etc., R. Co. V. Thomas, 89 Ala. 294, 7 So.
762, 18 Am. St. Rep. 119; Baltimore,
etc., R. Co. V. Schumacher, 29 Md. 168,
96 Am. Dec. 510; Hooper v. Wells Fargo
& Co., 27 Cal. 11, 85 Am. Dec. 211; Story,
Bailm., § 444.

39. Transportation over intermediate
Short Line. — Louisville, etc., R. Co. :■.
Campbell, 54 Tenn. (7 Heisk.) 253.

Defendant, who, as a connecting car-
rier, received goods under a contract re-
stricting its liability to a delivery at its
terminus, M'as not liable to the consignee
for failure to deliver, if the goods were
received at the terminus of defendant's
line, and there held because there was
no carrier to haul them a few hundred
feet from its warehouse to the boat land-
ing of the next connecting carrier. Louis-
ville, etc.. R. Co. V. Campbell, 54 Tenn.
(7 Heisk.) 253.

40. Alabama. — Alabama, etc., R. Co. v.
Thomas, 89 Ala. 294, 7 So. 762, IS Am.
St. Rep. 119.

New York. — Goold v. Chapin, 20 N. Y.
259, 75 Am. Dec. 398.

A railroad company, which, without
giving the shipper an opportunity to at-
tend to the loading, puts cattle carried
over its own line in cars furnished by an-
other company, hauls them over a con-
necting track, and then delivers to it. is
liable, in tort for breach of duty growing



out of the contract of shipment, for in-
juries in transit over the second line,
caused by negligence at the time of the
transfer in not supplying bedding and
partitions, and in overcrowding, though
the contract of shipment limits the car-
rier's liability to "gross or wanton neg-
ligence," and to that of a forwarding
agent only in delivering to the next line,
and provides that the shipper is to load
and unload and care for the cattle. Ala-
bama, etc., R. Co. V. Thomas, 89 Ala. 294,
? So. 762, 18 Am. St. Rep. 119._

41. Notice to succeeding carrier of ar-
rival. — Plaintiffs delivered cotton to de-
fendant railroad company at a point in
Texas for carriage over its line to New
Orleans, and from there over a connect-
ing steamship line to a foreign port. De-
fendant maintained a wharf at New Or-
leans, upon which it unloaded from its
cars and piled cotton for export, and from
which such cotton was taken by the
steamship companies, being checked i";ut
from the piles, and receipted for at the
time it was loaded on the vessel. It was
defendant's custom to notify the several
steamship companies of the arrival at its
wharf of cotton billed for shipment over
their lines. After plaintiff's cotton had
arrived and had been piled on the wharf,,
but before the steamship company had
been notified of its arrival, it was de-
stroyed by fire. The conditions of the



3361



LIMITATION OF LIABILITY.



§ 3740



Notice to Succeeding Carriers of Character of Transportation.— Where

a railroad company receives freight for shipment under an agreement to forward
it to its destination, and the stipulation that its liability as carrier shall cease on
delivery of the goods to the first connecting line, the contract also providing for
"passenger service through," the duty of the company as forwarding agent con-
tinues till the goods arrive at their ultimate destination, and it is therefore liable
for any delay caused by its failure to notify each successive connecting road of
Ihe conditions of the contract in respect to the manner of transportation."* ^

Disregard of Shipping Instructions. — The carrier, in undertaking to for-
ward goods beyond the terminus of its own route, is bound to obey all reason-
able instructions of the shipper or consignor not in conflict with the terms of
the contract of shipment, and if he disregard such instructions, and the goods
be lost by reason of this act of negligence, he will be liable for their value, al-
though the loss may occur in the possession of another carrier or person. If,
in forwarding, shipments are made in a manner prohibited by the sender, the
carrier so forwarding is liable as an insurer for the safe delivery of the articles
so sent."*^

What Constitutes Delivery to Steamship Company. — A railroad com-
pany does not, by unloading a shipment on a pier under its sole and absolute
control and possession, and notifying a steamship company, the succeeding car-
rier, of its arrival, deliver the shipment "to the steamship company or on the
steamship pier," within the meaning of a clause in the bill of lading providing
that its liability shall terminate on such delivery, even assuming that such pier
was the place agreed upon between the railroad and steamship companies to
make delivery of freight to be thereafter carried by the steamship company,
where the railroad company still continues to retain full control of the shipment,
2nd could, under certain contingencies, and at any time before delivery to the
steamship, send it by another steamer, and by agreement between the parties
the steamship company was not to take the property until it sent a steamer to
the pier for that purpose.'** But there is a delivery of freight by a railroad



bill of lading for such cotton were di-
vided into two classes, one relating to the
service until, the other to the service
after, deliver}^ at the port of New Or-
leans. Among the former was a clause
providing that "no carrier shall be lia-
ble for delay, nor in any other respect
than as warehouseman, while the said
property awaits further conveyance."
Held, that under such provision defend-
ant's lialiility as carrier was not changed
to that of warehouseman prior to notifi-
cation of the steamship company that the
cotton was ready for delivery; that both
the exemption from liability for delay and
the substitution of liability as warehouse-
man must be construed as taking effect
only after the service of defendant had
been completed and the property awaited
the action of the connecting carrier.
Reiss V. Texas, etc., R. Co., 98 Fed. .'S.S^,
39 C. C. A. 149; S. C, 99 Fed. 1006, 39
C. C. A. 608, affirmed in 22 S. Ct. 253,
183 U. S. 621, 40 L Kd. 35S.

42. Notice to succeeding carriers of
character of transportation. — Colfax
Mountain P'ruit Co. v. Southern Pac. Co.
(Cal.), 46 Pac. 668.

43. Alabama, etc., R. Co. v. Thomas, 89
Ala. 294, 7 So. 762. I« Am. St. Rep. 119;
Johnson v. New York Cent. Transp. Co.,
33 N. Y. 610, 88 Am. Dec. 41(), and cases



cited in note; Maghee v. Camden, etc.,
Transp. Co., 45 N. Y. 514, 6 Am. Rep.
124.

44. What constitutes delivery to steam-
ship company. — Judgment, Texas, etc., R.
Co. z'. Callendar, 98 Fed. 538, 39 C. C.
A. 154, affirmed in 22 S. Ct. 257, 183 U.
S. 632, 46 L. Ed. 362.

A railroad bill of lading for cotton
shipped from Texas to Liverpool pro-
vided that responsibility on the part of
such railroad should cease "upon deliv-
ery of said cotton to its next connecting
carrier," and, in case of loss or damage,
"that carrier alone shall be held liable
therefor in whose actual custody" the cot-
ton shall be at the time of such damage
or loss. The railroad transported the
cotton to New Orleans, and unloaded it
on its own wharf, from which it was to
be loaded upon the steamship of a con-
necting carrier, and gave notice to such
carrier that the cotton was ready to be
taken by it. The cotton was destroyed
by fire while on the wharf, and before
the arrival of the vessel. Held, that such
loss occurred while the cotton was in the
"actual custody" of the railroad company,
and it was liable therefor, under the bill
of lading. Texas, etc., R. Co. v. Clayton,
19 S. Ct. 42], 173 U. S. 348, 43 L. Hd. 725.

Where a carrier receives lumber for



§§ 3740-3741 CARRIERS. 3362

company to a steamship company, so as to relieve the railroad company from
further HabiHty, as stipulated in its bill of lading on the happening of such event,
though it is unloaded on a wharf belonging to the railroad company ; the rail-
road company having given the steamship company notice by letter, which was
unanswered, and seemingly acquiesced in, that unloading of steamship freight
at that place constituted delivery by the railroad company, and that thereafter
it assumed no liability therefor.*^

Stock Shipments. — Where the contract of transportation of cattle by de-
fendant over its line and connecting lines limits defendant's liability to damage
occurring on its own line, the carrier is not liable for damage resulting from
negligence on the connecting line after delivery of the cattle to such connecting
Iine.4«'

Right to Deliver Immediately upon Arrival at Terminus. — Where a con-
tract for shipment of cattle by a railroad terminated on delivery of the stock
to a connecting carrier, on arrival at the junction the carrier had the right to
deliver to the connecting line at once, and could not be held liable for damages
for not holding the cattle to give the shipper an opportunity to water and feed.^"

Delivery According to Earliest Schedule Time. — Where a carrier for-
warded live stock according to the earliest practicable schedule time, which, as
the shipper previously knew, involved a delay of four hours at one point, and
the animals were delivered in good condition to a forwarding carrier, and the
first carrier had stipulated that its liability should cease when they were deliv-
ered to the forwarding carrier, it was not liable for the injured condition of the
animals when delivered to the consignee.'*^

§ 3741. Refusal of Succeeding Carrier to Receive Shipment. — Where
a traffic association composed of several carriers issues a through bill of lading
for freight, the shipper is entitled to an uninterrupted continuous carrier's duty
from the shipping point to destination ; and a stipulation in the bill of lading
that in case of loss, detriment, or damage whereby liability should be incurred,
the carrier alone should be liable in whose actual custody it should be at the
time of the loss, can not be construed as absolving carrier which actually has the
custody of the property from its common-law duty and obligations, because one
of its associates has unreasonably neglected or refused to receive and forward
the shipment. Such a construction would permit loss to occur while freight was
being transported by several carriers, under a through delivery agreement, with-
out a carrier's duty resting upon them at all times. The carrier in possession
could escape liability because it had tendered the goods to another, and the
latter could escape because it had neglected and refused to become an actual
custodian. The language in question must be construed as an affirmation or a
guaranty that there shall continually be a carrier in actual custody, and that
connecting carriers will receive at the proper time and place. It makes the
carrier which transports the goods to a point where another is to assume the
custody and control a surety that the latter will receive. \Miatever may be the
relation between the two carriers, as between the carrier who actually retains
custody and the shipper the duty and liability of the former continues. It has

shipment to Europe under a contract ter- 46. Stock shipments. — Chicago, etc., R.

minating its liability on delivery to the Co. v. Slaughter, 84 Ark. 423, 106 S. W.

steamship company or on the steamship 208.

pier, the placing of the lumber on the 47. Right to deliver immediately upon

pier owned by such carrier is not suffi- arrival at terminus. — Texas, etc., R. Co.

cient to relieve it of liability for loss of v. Stribling (Tex. Civ. App.), 34 S. W.

such lumber. Lewis v. Chesapeake, etc., 1002.

R. Co., 35 S. E. 908, 47 W. Va. 656, 81 48. Delivery according to earliest sched-

Am. St. Rep. 816. ule time. — Xashville, etc.. Railway v.

45. Washburn-Crosby Co. v. Boston, Stone, 112 Tenn. 348, 79 S. W. 1031, 105

etc.. Railroad, ISO Mass. 252, 62 N. E. Am. St. Rep. 955.
590.



3363 UMITATION OF UABILITY. §§ 3741-3742

not become a warehouseman by the refusal and neglect of another carrier. The
real meaning of the language in question is simply that one carrier will not be
held liable or responsible for the loss or damage done by another.'*^

Carrier Guilty of Breach of Contract to Ship by Specified Steamer. — ■
A\"here a railroad company agreed to transport a shipment of freight to the ter-
minus of its own line and to ship the same on a specified date by a specified
steamer, the railroad company is liable for a breach of contract where it tendered
the shipment to the steamship company but the master refused it under an al-
leged custom authorizing him to say what freight he would take or refuse to



Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 49 of 214)