181 -
;J!fOERAL BBPORTER.
by the evidence, the towage contract was one towage from sea to sea. The contract must be treated as a whole, and as there was performance the contract for towage cannot be said to be unexecuted. The libellants have a lien for the full amount due them. Let a decree be entered in favor of libellants for the sum of $429.45, with legalinterest, 5 per cent., thereon from February 19, 1881, with casU! in both courts.
HARDING
and others 'V.
INTERNATIONAL NAVIGATION
Co.-
(Oircuit Oourt, E. D. Pennsylvania. April 10, 1882.) 1. COMYON CAumER - THROUGH BILL OF LADING INDEPENDENT CARRIER. LIABILITY FOR DAMAGE BY
Each carrier on a through bill of lading, is liable only as respects his own line, , in the absence of a different understanding. 2. SAME-TRANSPORTATION BY LIGHTERS BETWEEN WHARVES OF Two STEAlIr-SRIP LINES.
Where a carrier operating a line between Antwerp and Philadelphia issued 8 through bill of lading from Antwerp to Boston, stipulating that the goods were to be transported to Philadelphia by steamer, and 'from thence to Boston, either by water or rail, and that the responsibility of each carrier should be limited to each line, held, that it was not liable for injury to the goods on board of lighters which it had employed to transport the goods three miles by water from its wharf in Philadelphia to the wharf, in the same city, of a steam-ship line to Boston. S. SAME.
The employment of the lighters in case held to be not ordinary light61'age sel'V1CC, but a carriage lJy water over a necessary part of the route to Boston.
Libel by George W. Harding and others against the International Navigation Company, to recover for injury to goods of plaintiffs car· ried by defendants. The facts were as follows: The International Navigation Company was a Pennsylvania corpOratlOl', operating, between Antwerp and Philadelphia, a line of vessels owned by the Societe Anonyme de Navigation Belge-Americaine. In November, 1879, It received at Antwerp a quantity of wool consigned to libellants at Boston, and issued therefor a bill of lading headed,. "Through Bill of Lading of the International Navigation Company, via the stearn-ships of the Societe Anonyme de Navigation Belge-Americaine, between Antwerp and Philadelphia, and the Pennsylvania Railroad Company and its connections, or other railroad companies or steamers or lighters, from Philadelphia to point of destination." " From Antwerp to Boston, via Philadelphia." *Reported by Frank P. Prichard, Esq., of the Philadelpllia bar.
HARDING V. INTERNATIONAL NAVIGATION CO.
169
The material parts of the contract set forth in the bill of lading were a!! follows: "To be transported from Antwerp to Philadelphia by the steam-ship Nederland, (with the privilege of calling at Southampton,) and delivered to the International Navigation Company (Red Star Line) at the port of phia, and tilence to be transported by rail, steam, or sail, at the option of tho said International Navigation Company, to Boston, S. A., and delivered in like good order unto order, or to - - assigns, on payment of the freight and charges thereon. "The responsibility of each carrier shall be limited to its own line.
*
'"
·
...
" It is further stipulated and agreed damage done to or sustained by any of the property herein receipted 1'01 during such transportation, whereby any legal liability or responsibility shall .or may be incurred, that company, alone shall be held answerable therefor in whose actual custody the same may be at the time of the happening ,of sucl; loss, detriment, or damage." , " The wool arrived safely at Philadelphia and was unloaded at the 01 ' respondents at Girard Point, Philadelphia. Respondents then employed R. Patterson & Son, the owners of a number of lighters used in harbor tation, to transport the wool to the wharf of the Boston Steam-ship CoInpany, also in Philadelphia, but three miles distant from respondents' wharf. The lighters were unroofed barges, such as were ordinarily used"for harbor transportation, it being customary to protect perishable cargoes while on board of them by means of tarpaUlins. While the wool was being thus transported to the wharf of the Boston Steam-ship Company it was damaged by rain in consequence of not being properly protected by tarpaulins, and was shipped to Boston and delivered' to libellants in this damaged condition. Libellants then filed this libel to recover their loss by such damage.
.,'
John D. Bryant and Hen'ty Flander3, for libell{tnts. Morton P. Henry and R. O. McMurtrie, for respondenta. BUTLE;R, D. J. Notwithstanding the existence of contrary decisions, it is quite well settled in this country, that each carrier on a bill of lading is liable only as respects his own line, in the absence of different understanding. Such different understanding may be shown, however, either by express contract, or the existenc'e of circumstances from which it should be inferred: Lawrence, Carriers, § 24; Redfield, Carriers, § 180. That such is the rule iI;l the federal courts is shown by Railroad 00. v. Pratt, 22 Wall. 123. In our case the carriage was on a through bill from Antwerp to Boston, via Philadelphia. 'l.'he respondents' line, (to which the Nederland belonged,) terminated at Philadelphia, from which point the transportation was to be continued by water or rail, and necessarily through the agency of other oairriers. From Philadelphia to relation to the shippers was not that of Boston, therefore,
170
FEDEEAL REPORTER.
oa.rriers, \unless they contracted to assume it. In the a.bsence of contract 'they were forwarders, simply. As before stated, such a contract may be shown by express stipulation, or by inference from circumstances. Here there was no express stipulation to this efTer-t. There are circumstances, (such as collecting freight in advance for the entire route, etc.,) which, standing alone, might justify an inference that the respondents contracted as carriers throughout. But such inference is completely repelled by the terms of the bill of lading. The respondents, unwilling, as it appears, to trust their responsibilityrespecting the transportation beyond Philadelphia., to the conclusion of law before stated, or to incur the danger of inferences of fact such as have just been referred to, expressly stipulated that "the responsibility of each carrier shall be limited to each line," and that "in case any loss, detriment or damage done to, or sustained by ,any of the property herein receipted for, during such tra.nsportation, wherebY,any legal responsibility shall or may be incurred, that company a.lone be answerable therefor in'whose a.ctua.l custody the same may be at the time of happening of such loss or damage." However signific'ant the circumstances referred to might be in the absence Of this stipulation, with it they are unimportant. Nothing is left to inference. That this stipulation encounters no legal objection is plain. It corresponds, as we have seen, with a legal presumption. The case of Hooper v. Wells, 27 Oal. 11, cited by the libellants, contains nothing new. The defendant, an express company, was a carrier throughout the journey. Not only did it undertake, to deliver to the consignee, but' the carri'age was over its own route the entire distance, and the property was in the hands oj ,its own messenger when lost. That it did not own or control the' vl;ll3sel 011 which the messenger traveled, was unimportant. The d!3fendant limited its responsibility by stipulating that it was a "forwar4er," simply; and the construction of this stipulation gave rise to the only question in the case. It was construed to have the same effect as the ordinary stipulation required by forwarders against risks peculiar to their obligation, relieving from everything save the consequences of negligence. This the court held to the intention of the parties, saying, "The;stipulatipn simply meanstlJ,a.t the defendant would not assume the extraordinary responsibility of common carriers ani! become insurers. lit lit ,lit There is no stipulation against negligence on the part of defendat;ltsor their employes in transmitting anotheJ;:class of the goods. The limit is ,fixed by
v.
NAVIGATION
CO.
171
bailees,' - · and the meaning as we construe it, is that the defendants will be governed in respect to liability by the same rules as are applicable there-to forwarders." The court further eays the printed words in the contract "not to be liable beyond our route," are inapplicable and without effect, because "the defendants' route nothing extended the whole distance." The case I l'0peat new. It is urged, however, that a distinction should be made between the carriage from Girard Point, (where the Nederland discharged,) to the Boston Steam-ship Company's wharf,-three miles distant,and the carriage thence to Boston; that the former, at least, was by the respondents, through their agents; and as the negligence complained of occurred here they are responsible. I cannot. however, adopt this view. That the merchandise was carried between these points, in "lighters," is of no consequence. It was not ordinary lighterage service. It was a carria:ge by water, over a necessary part of the route to Boston.. That the appropriate vessels were "lighters" is unimportant. The respondents had. no line over this part of the route. They did not do the carrying, and had no means of doing it. lt was just as necessary to forward by other, independent carriers, here, as over the balance of the route to Boston. The distance hasnd influence On the question. Patterson & Sons, to whom the merchandise was delivered, are reputable transporters, wholly independent of the respondents; havingnppropriate vessels, for the service required, plying between these points. The respondents, therefore, were justified in making delivery to them; and they were no more the respondents' agents than was the Boston Steam.ship Company in the subsequent transportation. They are w$tinctlywithin the terms of exemption quoted from the bill of lading, and as distinctly within its spirit. The respondents were unwilling to assume the duties and. responsibilities of carners where they had not the means of carnage, and could not therefo1'6 control the agencies employed. To guard against misconception they had this inserted in the contract. They had no more control over the agencies employed between Girard those employed Point, and the steam-ship company's wharf, between the latter point and Boston. Appeal, isx;nade to the interest manifested 'bYJespondents in the ,transportation by the "lighters," as evidence ()filieir of the; If the contract was open to the clainied, .manifes;taMon of interest stoodaloAe,' it might be entitled' to some weight. 'The contract, howe-veT/is not open to such interpreta'tion:; andint were
179
FEDERAL REPORTER.
the respondents' correspondence at the time shows that they did not 80 understand it. The interest manifested, therefore, must be attributed to the respondents' zeal in the shippers' or consignees' welfare. The libel must be dismissed with cOsts. I
(DiBtrict Court, E. D. PennslJlvania.
March 21. 1882,)
1n a suit, ):)y a tug for the contract price for services, and for daIll1lges for detention under a contract for towage services stipulating that the vessel might stop to sheathe, the evidence held not to sustain the allegation of unreasonable delay insheathing. 2. SAME- WIJ,J,.INGNESB TO PAY FOR TOWAGE-COBTS. It appearing that respondents had at all times willing to pay the contraft price for the towage, the costs were put upon the libellant, notwithstandmg the fact that no technical tender had been made.
Libe.1 by the master of the tug Juno against the bark Sebastian Bach, to recover compensation for towage services, and damages for detention. The facts were as fQllows: , The tug spoke the bark as the latter was entering the capes of the Delaware about,noon on January 25, 1881, and it was then agreed between the master of the bark and the master ·of the tug that the tug s!:lOuld tow the bark to Philadelphia, but that the latter should have the privilege of stopping at the breakwater to sheathe, as'the river was fnll of ice. About an hour afterwards the bark anchored at thebteakwater, and during the'afternoon obtained and sawed lumber with which the next morning sh6 was sheathed, the work being cOlIlpleted about 11 o',clock A. M. It Wa.$ then too late in the daY to start, and it was resolved to wait u,ntil 3 o'clock the next morning, 'Which was done. The tug, on the arrival of the. vessel at presented two bills,one for the service. 'alld one, for $150. for detention, alleging that the bark ought to have had the sheathing completed in to have started early on the morning of tneday after her arrival at the The respohdent Qerlined to pay fol'! ,the detention, but was willing to pay the bill for towage, although no tender was made.
.
R. G. Ward, fodibel1ant. Cur,tis and:Henry Flande'l'fJ, for responaent., BUTLER, D;J:',The claim is no.t At the next ontset it was rested on a11 expr.ess contract to he rea!lyt,<> at'S' o·clo6k.Failing in this .it 'is, now put upon an .;: "T
(,rL .' '
''
I
"
-
1
-Reported by FrankP. Prichard, Esq., of the Philadelphiab3r.