7 F. 68 -

68

the. c01;lrt cannot .!,ay that. they ahould haved&,: otherwise. was caHea to the conflict of testiII1-on.y, and to14what were the. rules and; f,esting t4ey,. had, the. benefit pf thorough argqItV;lnt; by c()lltrasted n,ess, ,':'and proper cllarge, they have the fact. "I cannot turb verdict. . '" . another ground,)rrespectiye.of ;the fwegoing, p,n, Wh}chthisverdict be as insistedhy plaiptW, which is that Wtis,w9man a ticket by an agEfntwho swears her character, and she having acquireq.a:seat lip none of equal the defendant cqulq not, in the of bad conduct at the ·.time, exercise any right to in that car on account of general bad reput,atjon. But it is unnecessary to exaw-inethis sub· conclusion on the other jectcritically, since I have points that would lead to... the >,same result if this should be ruled in plaip.tiff,'s ,ff\.vor1 . I place my j upon thegrDllnds tha it ·so ear,nestly argued,and, to fairly decide upon the w4ich; i,tvaUd, would ha,yl'l tJ,le company llI!-der tl1empst favorable ;View of the pase that could beJaken .. . motion for a new trial
I

HELLIWELL

and another "D·. GRAND

, C.&:!UDA.

TRUNK RAILWAY OF

(Circuit Oourt, E. D. W$8con8in. February 4, ISS!.)

1.

OoMHON CARRIER-DELAY IN TRANIlPORTATION-LIABILITY

H. & Co. sliipped flour from::Milwaukee to London, under a coli· tract which required the defendant to transport the flour by to Ludington, Michigan, thence by rail to Portland, and thence by steamship to LoMon. In an action'tb reoover damages for delay of the flour at fortland,"r; " . Held, that as the bills of lalling constituted a thr01..lgh cl)ntract, 1

HELLIWELL V; GltAND Tltt1NX R"i. OP OANADA.

69

• was the duty of the carrier to deliver the flour in L<irrd6tl; :and to d6 BoWithill a reasonable time;. a)ld that it was as much, d,qty to BElaeonably provide ;vessels for, ,transportation as to .fp,mish for. the land carriage. .,' That 'if, at the time of making'thecontract of shipment; the carrier had no. doubt, and,if the'cow:lition of business on its Unes gave it no ground for doubting;thatiluitttble means would be,at its. command within the time for conveying the flour ;trom Portland to LondoD.,ltnd if all reasonable efforts were seasonably employed to obtain such means; and the delay was solelyoccasionecfbj atltlxtraordinary and'unusual influx: of freight· upon its for 'foreigu' making of that it export, arising 8)lbsequently to was thereof rendered impossible'for the carrier, with proper diligence on its part, to procure vessels to carry,the flour' within teasonallie 'time, the carrier would not be 'responsible for the delaY' But if,. at, thll, time the contract of shipment was lDade, ,there was, already an 'accumulation of business on which incapacitated it, or might reasonably be expectMti> incapacitate it, for transporting' and delivering the flour within a .t6asonable time, and' this was then known to the carrier, or might have been' kn<;>wn by proper effort on its part, or if there were then reasonable grounds for a belief on the part of the carrier that such was the state of the case at the time, then the would be liable forthe delay, although it waspccasioned by Buch accumulation of business. Iqsuch case it is the carrier'8 duty to w,form tbeshipper of the condition of its liues, so that he may exercise his to select some other line foHhe transportation of his property';" and if' the carrier fliils'to do this,' and takes the property in the face of threa'taned ina. bility 'to transport .with requisite dispatch, itm1,lst answer fOr, consequences of the delay. . .' " A carrier no right to' take a shipper's property fOf trimsportation,'concealiilgifrorn him at the time existing cireumstlmc'es within itS knowledge; or ,fair and reasanablemeans:of knowledge, and not witbin tl1e kllowledge of theshi.pper, thatlDay inpapacitate, .or may be fairly expected to incapacitate iUor the full performanc;e of its 'duty in transporting the: ptoperty, and then claim 'exemption from liability.
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Van Dyke et Van Dyke, for plaintiffS. G. W. Hazelton,for defendant. DYER, D; J.,(charging jury.) This is an action brought by the plaintiffs; who compose a firm doing business in this city, against the defendant company to recover damages for the alleged failure of the defendant to transport certain quantities of flour which it undertook to carry from MilwaUKee to London, England, within such time as it is claimed the same should have been transported a.nddelivered to the consignees.

From admissions contained in the answer., and from a stipulation put' into nthe case by' counsel for' the respectivepariiles, isni>' as to certain facts, viz.: that;7,558bags,pf fl94r l of thEl weight of 140 pounds each, were delive'red to the' defendant for transportato be pltid'forsubhtransportation was 56.cents gold, per hundredpotin:ds 'j that the flour was to be transported .by the Northern Transit line from Milwaukee to Ludington j' thence by the Flirtt & PereMarquette Railwa,y'and the de'fehdant's line tit road to Portlan,d j and thence ., ', by It is stipulated that a cert!bin tabular statement, which has been exhibited to you, correctly states the'dates of actual delivery' of the seyeral shjpmen,ts' qf flour to the Northern Tra.nsit line at Milwaukee, the dates of departure from Milwaukee of the sevei.'al steamers of that line laden with the flour, the names of such steamers, the4v.antity of flour by them respectively carried ; the dat.esof arrival of the different shipments at Portland, and of the delivery of the same on board steamships bound lor Londouj the names of such steamers, anclthe' dates of their departure from Portland and arrival at London; and it is expressly stipulated that the stea;m-ship Argosy leftPortland March 27,18S0,andarrived in London April 7th j that the steaJll-ship Both'el left Portland April arrived in London,Apvil 22d jand that the Argosy and Bothel, and the steam-ships Herworth and Woodthorn, which two last-named vessels carried the flour, were all employed by the defendant in the business of transportation, and were all vessels of equal class for marine insurance. All these are uncontroverted facts in the It appears that the flour was all here in Milwaukee to the Transit line at variou!, dates between February 26th, inclusive, and March 19th, inclusive j the largest portion being deliverj:ld on February 26th and March 2d. It was shippeq on vl.l;rious days. between February 26th and 19th, inclusive, and arrived in Portland at different dates between March 13th, inclusive, and March 30th, inclusive j the most of it so arriving on and prior to

BELLIWELL .::GBAttD

01' OANADA.

MJI,rch' t9ih.It' waBall toLEdridtItt 1i6nC iha vessels ,Woodthonr and clirfie'd. on -thorn "Vas delivetied 'to heri Aprn:l7th, li8t1j;! ttnd 19th, she !sa'i:led>on'the 19th'and arti'fed Jin'L6ndOl:(May '1l5ih. That' pam of the :flouT cariied'o-b"tlie ereil·to her April>27thand 98th,aml she sailed otl the 29th and'ltl'rivedin London Mtty15th{-oll the'same dii that ithe Woridthorn arrived. ' :' ; ,' Now, ' gtlntlJemell', 'the;IJnfllt 'question ariSing What, was the'contradt tihdelt! 'which the the,·tranisptittwtion· of 'this' ifleur; rights: andobligittioIiS theycinflt<lt made ?ThJ Jhave' floor was- reeeived:by the defJndl:tnt and' sh'fpped' under 'a verbal contrtl,ct ;alleged have' beefi"rriade un 25t,h, and 28th' Of F-ebrttitty, behltlf; with:thecwitness ant; and that'this Jeontrdct' wAkiblW the :lh!lur'should 'be ried to Poitland bytbe 'route and di,Hhe linesriariiefd,:and should be ;then:eeto'Vondt>n' If)y'l'he steamLship Argosy. It has been 10laimedihal by:th'fs alleged agreement the defElndant undertOokabsoluiely that ilie fi6'uf shOuld be' carried on that vessel, and, rio :other. This cl'ltitri, wholly ignores,thedbinll 'M lit ding itl evidence; and which cohfessedly the plaintiffs silbseql1etitly defendant's agent. Upon looking lading wEi find that they provide that the 'fIdUi' sh'ipped' lit Portland 'fupon the vessel called 'the (Argosy;';(or othervesseliJf equal class for marine insurance. 'And' we see' thattM bills ofJading diffel from the verbal in that they, by 'their terms, the flour on the Argosy or on any other vessel l6£' equal 'class' 'for insurance." It has been contended!}jyJthe phiintiffsthat, with reference to the vessel on whicnJthe':flout waS' t6 bel shipped from Portland, 'the alleged' verhal 'contract must 0.1 against this provision in' the· bills of on the part of the defendant it has been Claimed that the bills of'lading constitute the contract on the suhJect.
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lamol: the. opinidn, (a8 cpuJlsel.)' ,an4, yQU, !that in ,tAl\' ,bills,Qf lading"did notlimittlle,de,pgmwon, carrier, theYicpnstitlited the the parW3s, and, so' far as this qpestion Qf, the; 9U the flouf',shouldbe shipped ,.q¢endant was ;not ,bound to ship it on the Argosy alone, but' had the right to ship it on t4at or ap.Yr cla.s8 ,wiUh, Ule Atgosy !W", ,m,arffie, : ,thtmi WI1S tha. tithe de'fe:ttd,ant?Mo¥14 con· J,ey,it,t<;l,.:Hu,dinSt9u Tran,ait, line, thepce: by t,lW the defepdt\ntis line KO ancl thence, ,by,thesteam-,ahipArgosy pr SOltl.'e of equal marine tQ.Lond:on. '1;'h,Cf' l?HIs, pi Jtl,dipg<}Q:p,faiP.eda con,dition tbatthe defendant tbefl<mr oc. ,of p,eJlJ;pf controYlilrsy, aj3to the efie.ct9f condition, ana al!,to was .hinding,!\lpon plaintiffsaa-part the contract..rlA,view, ,.of ftj.ct the 9pjnion of, the cOQrtthat clausewortld, if regarded as'partoOhe ,contrac.t, g\ve no greltterexempticin tlle carrier than .itwo\lld be, question as to that clause was part of theplaintiffa' contract or not, becomes of no import.ance in the view of both counsel and the, court, and it .is tpereforeunnecessary to, to youquE1stions .as to and effect of which .I>,tlwrwise might be material, It is claimed by the plaWtiffs that the flour in questioli was not trausported hythe defendant and· delivered in London with proper dispatch;. · · · that it was unreasonably detained in Portland after its arrival at that port. It is claimed that these delays were attributable to the fault, of the defendant, and to its neglec.t to furnish such means of, conveyance aJ;ld, for transportation as the were, under its contract, bound to furnish to enable it to deliver 'be flour in London a proper and rea-

BELLIWELL V. GRANDTRuN'i::ny. OF CANADA.

78

sonable time, that in consequence, and becaus80f a. decline in the price of flour between the time ,When it is alleged it should ha.ve oeeridelivered in London' tiine when'it was actually 'delivered"the plaintiffs have been sub'ft' loss which the sliould make go6d JtQ them. ' , " ' , It is claimed by the defendant that :the'flour' was ported within' ii''reasonable tim,e under the .ell'" cumiitances'eidsting,at the time. " Itis adrllitted thlttthete was' delay in the' flour from Portland, but it I is Insist'ed 'thatLthe when" itmQ;deits contract' with the well Bupplied with: ments, facilities;' and means for trariep:ortingall the' which eQuid' lJb'e" ordinarily ito trarispdrtation upoh its route,and thattlie: delay oecurtin:g at occasioned by 'a 'and extraordinary' fuflui of 'ocean freight, the defendant's 'cdntrol, and'which it could not foresee and antici:r,>ate, nor exercise uf,anY, diligence provi'ae for; and that ,it riot to be held re.' sponsiblefor circumstances, whieh,asit is claimed, eicuse the alleged delay in forwarding the flour. The obligations assumed by the defendant in this transactiori were the usual obligations of a common which was that of transporting this flour to the place'of consignment with proper dispatch; that is, within a reasonable time afteritwas d'elivered This it was incumbent on the to the defendant for defendant to do under this contract; 'ahd, as to wh'at is meant by reasonable time, perhaps nbrule can be mote satisfacto:' rily laid down than that the transportation be accomplished by the carrier "with' ail convenient with such suitable 'and sufficient meaus'alfh'e ifirequifedto provide for his business." Hutchinson on' Cartiers, § 328: .'The tifue is'one"Of fact, maj'b& determined by the length of the journey, the modes: 01 bonveyance, the of' the year,' the state of, the "and 'any other ;taKen ' intb cottsicferaUon by the jl1&' in finditrg \fhether' the1amer has'l'ieen' guilty' of improper 'Hutchinson 'Oil
I

74

/ ;1,:..:

§ 329., This; then, .wa.f;! the.gen,er¥jl duty pf the defendapt; that: is, to cOIlyey"thisflour ltnq.. there deliver it to the a reaaqua ;, f?omething has b.een said in the arguwWltl?, of [counsel afdq the alleged fail,ueof the itl;l.command to receive this flour on its arrival in Portland. This was a throughcontrapt. ,Itwlts much the duty of the defendant to fUIpish vessels for ,theJ>,cean tfanll,r portation of as it was its;duty to furnish cars to;Bortland.. It ,wl1s not, how. ever, duty. to w"ye ;y.essels rjI).waitingat Of: day, the flour shoqld. arrive in Portland.i but it. W/lIS. its duty tq, provide means of ;conveyance by :reasonlj,p,le dispatch should be affq.J:ded,litpd iill;.The.laW,ill'l;lUch nothipg but it, ,does require.diligence and. reasonable under in: tq.rnishing means of that, defendan.tdidnot. ship flour On the Fhe right,;to.f;lhh>,it oUany otherv:e.ssel of eqUftt ,for marip,e did not in relieye. the. defendant .of its duty in the matter. of forwarding If it .lielecte.d s ;;rp:q..Qh b09nd to· anyother . 4t was, ?r transport time as if the shipment Wll<S made in that. .vessel. It may beweIl to . . . state ,to yon fu.rpher, -:8. general proposition of law with tCl fL:,!lommoncarrier, to provide that'.it)s Hthe first. duty of tl1l3, hiJ:H!lt¥,f.. wH,h, an the and aptmp-spcdtaiion, ;of SUGh" goods; as he '.holds \ hiJ:rlself :reft4y iI)., put himself in· a.:: s.i,tJlft tc?, PI'l, Able to an 1WlQur:h 'ill which, ,propOll6S . carry t() w,hiQR ..be. orqinarilJ', to, seeJi w.ql "be,excllsed fornpt b'eipg pf he, may bly eJ(pect i tq .. . )'\Wrl;l; :was. in,-t,rans·
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BELLIWELL ,,; GR.AND:TiitJNK

'RY.

OF OANADA.

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porting any' of the flour i to' PortIa,ud, or' in: it from that point,whichun'der 'ordiriary' make the defendant liable, it is claihie'd fi'n its"behaJf tbat it was excusable delay, and tliatthedeferidallt ought notio ;be h'eld ': . '." ' ' - \." , ,,' ""r' answerable therefor. " '" ' There is testimony tendmg'td:sho"w that'there was, at that time; an extraordinarypress'of'foreign export'tr.affic,' lind such an accumulation at Portland Of; freight '00 and for foreignporls asrenderea. it,asit toprovid'e immediate ocean trausportfitiOn. ' Upon'this question;nnd' aiho when or under ,what· 'eir&umstances .a.n ;freight will excuse dela.y, I instrUct' yon 'that if,afterthe defendant took this flour ror the performance of the contra'ctto carry was' begun,there occhrted,'without fault of the defendartt:an extraordiria.ry and influx upon the defendant's lines·of fteightforforeign export, and that 'the defendant was thereby unexpectedly iticapacitated 'lor forwarding the flo\tt With l1sultl dispatch;' and 1 that delay of the flo11r' was -wholiy 'ocC'&sionedby' a.nd uti expected pressure of frJight; and not In any by of th'e: defendarit,'then; and' 'tlnde:t+ fend lint. would; hbt 'responsible' ·iiudh· delay so, daC'asioned., however, be the'dntyof defendarit;m such, 0.' 'the case, to fdtwara,tha aftElr the of' such lI.eta.j' insubstatitiaUy-rthe forni of' one of the Instrl1etiona which: I a.m you: ;If,' at of ttutkingthe oontrlictwith' the] 'of 'flotu; the . 'liad'no ;donbt,ifthecot1diti&fbf business/,on. it'S: lines gave it Mrdutids 1'01· doubtihg;that Ditians w6uld'bti ;a.t its '\co:Dlmand within tb'eusual and ordmary ·tifue· 'for I£he' ;flo'ur ft6tri "Portland" to! fand' ;i£"o.11 rbas&itibllf 'efforts 'by 't'o! bbtairi' !lfti(jfi .-tnel1ns, !tIrd: alleged delay was solely occasioned by an extradrdina:ry a'ird' nmistlaf itifluX')of 'height fti n:ti'e'B"for:fq'teigh al'ieingsrtbseqlle'ritly'ttPthe'J rliaking Of:rtha; d6ntract with' 1th'e'

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eo thereby tendered fpr the without, any on its procure a vessel or vessels to, cap;y the flour within what, be, usual circumstances, a. re.lj.sonable time,.......then the defendant would be for the oisuch On the, 0ther time carry.tlJis iflour,thete was, alre;;tdy f!.cc,ulllulation w4ich the ,depr D?-ight Rflc ,it, for lly,tf.qxffiiu,g, floR,J.:; fP., ,krW)\':A I fA: t1;t,e) P:r, prqpeJ; effB;t;t ,pp. i JlllJfft! % tp

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.,.

; ;.i /;(',';'.l ',,{.; .r·t i . .r .·,-, ,YotI rlWiU idetetrnine; . upohall ,; the ltestiffidnffifi i tliecase, whether the alleged increh:ffifM'brisiriessan'd acil'umhllitiort 'of export freight was sudden; unlot>kedt fOr,arid and occurring after the contract with the plaintiffs was made, or whether it existed at the time the defendant took the flour for transportation, or could have been, under all the then-existing and expected. Testimony has also been given of the efforts made by the defendant to \obtaiI1,'iW6ani'era. to Calry this 'flour,' and in this connection ,tq·YBlf that"ther so.,oiqen ,than it, d.id,I,would net it fTom 'such iMJbilitj'Jwas solely attributable to such overpressure the instructiotlB I have given YOU woul n
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byuill)e·,smpulatitm:l!..,.iI1J,,evidepoe',J 8s i I,have",oijfOC&l5Btedj) the dates when the flour was delivered to the defendant in Milwaukee and when the shipment on line began; the dates oflihwi\ihl 3f to steam-ships at that I 6f We' iUi'iplf, ,blh'Ji facts in tHft':/§tipiHkt?6lft

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TIle, D\erefact',that a t>alty, the Dature his, 8uthoriz'lld to cross 'the' tracldS oCa raUroad, WIll ,not warrant such croiSing at a' place,otber than that provided by ,the rallrolid,-,-{EDo, '
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J>ft the Ws verdict, fQr defendant. ,lp-oyes For the, purposes pJ{tipijff. ,to the, of ,which the .jury in: action is Jo,r byJHe unpropj,t, 19p.ated, road. ,and I by for 4l:1wpin.s! ashes of ,The, pit, upon pf Jy,ing alld o,ccq.. if> Vit ,the: . a.liep..."·r.rJIe . ,'V:"'<s .in.t .!ffll f!.. ,tq tCf.tPiY Sj ireight.Jto and, at:8o}tp. whad ,io; i tl;1e

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