Opinion
January 19, 1912.
Henry J. Bigham of counsel [ Harrington, Bigham Englar, attorneys], for the plaintiff.
Norman B. Beecher of counsel, Ray Rood Allen with him on the brief [ Burlingham, Montgomery Beecher, attorneys], for the defendant.
Defendant, a corporation, is a common carrier engaged in the transportation of merchandise between different ports of the United States. On February 19, 1910, plaintiff's assignor shipped on board the steamship Onondaga, operated by the defendant, then lying at Jacksonville, Fla., bound for the port of Boston, Mass., 203 barrels and 161 sacks of rosin dross to be transported to Boston, and there delivered to the Vera Chemical Company, according to the terms of a bill of lading. The vessel arrived and docked at Lewis' wharf, the dock of the defendant company, at Boston on February 25, 1910, and said goods were discharged from said steamship to said wharf on February twenty-sixth. On Sunday, the twenty-seventh, a fire originated on said wharf which destroyed said goods. At the time of said fire all of the goods were in the possession of the defendant, the said loss and damage to the said goods was not caused by an act of God, a public enemy, authority of law, or the act or default of the shipper or owner, but it was caused solely by the fire, which said fire did not occur through the negligence of the defendant carrier, its agents or servants. The said fire occurred within forty-eight hours after the arrival of said steamship in the port of Boston, and no notice of arrival of said goods was sent or given by said agents prior to the time of the said fire and damage. The stipulated damage was $677.83. Defendant having refused to pay upon demand, contending that upon the foregoing facts, and because of the exceptions contained in the bill of lading, it was not liable, this controversy was submitted.
The bill of lading provides, inter alia, as follows:
"Sec. 1. The carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto, except as hereinafter provided. No carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, the authority of law, or the act or default of the shipper or owner. * * * For loss, damage or delay caused by fire occurring after forty-eight hours (exclusive of legal holidays) after notice of the arrival of the property at destination or at port of export (if intended for export) has been duly sent or given, the carrier's liability shall be that of warehouseman only. * * *
"Sec. 5. Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier's responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner's risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage. * * *
"Sec. 9. * * * If all or any part of said property is carried by water over any part of said route, such water carriage shall be performed subject to the liabilities, limitations, and exemptions provided by statute and to the conditions contained in this bill of lading not inconsistent with such statutes or this section, and subject also to the condition that no such carrier or party in possession shall be liable for any loss or damage resulting from fire, or for any loss or damage resulting from the perils of the lakes, sea, or other waters; or from vermin, leakage, chafing, breakage, heat, frost, wet, explosion, bursting of boilers, breakage of shafts or any latent defect in hull, machinery, or appurtenances, whether existing prior to, at the time of, or after sailing; or unseaworthiness; or from collision, stranding or other accidents of navigation, or from prolongation of the voyage."
It is clear from the conceded facts that the goods which had been received by the common carrier for carriage by water and had been unloaded from the ship upon its own wharf, completely under its control, were still in its possession. They had not been delivered actually or constructively. No notice had been given of their arrival and of course forty-eight hours had not elapsed after such notice, so that the carrier's liability had not been transformed to that of warehousemen only. So that the provisions neither of the 1st section of the bill of lading, nor of the 5th, providing for the change from carrier's to warehouseman's liability after expiration of forty-eight hours' notice, apply.
The question presented is whether the exception of liability for damage resulting from fire, provided for in the 9th section, which it is conceded would relieve the defendant from liability if the fire had occurred while the goods were still on board the ship, it being admitted that there was no negligence, applies to the goods on the wharf and still in defendant's possession.
If it were not for the exception noted it is clear that the defendant would have been liable. In Gotliff v. Brown (4 Bing. N.C. 314; S.C. in Ex. Ch. 3 H. G. 643; and in the House of Lords, 11 Cl. Fin. 45), to a declaration on a contract for the carriage of goods from Dublin to London and a delivery at the port of London to the plaintiff or his assigns, a plea that on the arrival of the vessel at London the goods were deposited on a wharf, there to remain until they could be delivered to the plaintiff, the wharf being a place where goods from Dublin were accustomed to be landed, and fit and proper for such purposes; that before a reasonable time for delivery elapsed they were destroyed by fire which broke out by accident, was held bad. In Redmond v. Liverpool, New York Phila. S. Co. ( 46 N.Y. 578) the court said: "The request to rule that the carrier was exonerated from liability by depositing the goods on the wharf, and before the consignee had time to receive them, was properly refused. A mere deposit of the goods by the defendants on their own wharf, without acceptance by the consignee, not separated and set apart from the residue of the cargo, and without a reasonable opportunity, and time for their removal, did not discharge the defendant, and they remained at the risk of the carrier."
In Tarbell v. Royal Exchange Shipping Co. ( 110 N.Y. 170) the court said: "The general principle that the duty and obligation of a common carrier by water does not, ipso facto, cease on the unloading of goods from the ship and their deposit upon a wharf, and especially where the place of discharge is also the terminus of the particular voyage, is the settled doctrine of this court and the generally accepted doctrine of the maritime law. The obligation of the ship owner is not only to carry the goods to the port of destination, but to deliver them there to the consignee. But a delivery which will discharge the carrier may be constructive and not actual. To constitute a constructive delivery the carrier must, if practicable, give notice to the consignee of the arrival, and when this has been done and the goods are discharged in the usual and proper place, and reasonable opportunity afforded to the consignee to remove them, the liability of the carrier, as such, terminates."
In Constable v. National Steamship Co. ( 154 U.S. 51) the Supreme Court of the United States said: "It is admitted that, under what may be termed the common law of the sea, a delivery of the cargo to discharge the carrier from his liability must be made upon the usual wharf of the vessel and actual notice be given to the consignee, if he be known. This was the ruling of this court in the case of The Tangier ( Richardson v. Goddard), 23 How. [U.S.] 28, 39, and The Eddy, 5 Wall. 481, and is in conformity with the great weight of English and American authority. Hyde v. Trent and Mersey Navigation Co., 5 T.R. 389; Gibson v. Culver, 17 Wend. 305; 1 Parsons on Shipping, 222."
It follows, therefore, it seems to me, that the conceded possession of these goods by the defendant upon its wharf within forty-eight hours after arrival, and before notice to the consignee, was that of a common carrier by water and subject to all the liabilities of such carrier, except as modified by the conditions and exceptions contained in the bill of lading. Loss by fire upon a ship has never been regarded as coming within the exceptions of the early bills of lading as to perils of the sea, but such liability has been excepted by the terms of the contract from early times. Maclachen in his treatise on Merchant Shipping, published in London in 1911, says: "The exception of `fire' is important in relation to the liability of the common carrier who, without it, is answerable for goods destroyed by that means, though accidentally. ( Forwards v. Fittard, 1785, 1 T.R. 27; Trent Nav. Co. v. Wood, 1785, 4 Doug. 287.) As it is no protection where the loss is due to the fault of the ship owner or his servants, it coincides in part with the statutory exemptions already mentioned, and beyond that extends, of course, to loss or damage to the goods while they are in the ship owner's care, though not on board the ship (a case not within the statutory exemption) provided that there has been no fault on his part or that of his servants."
Pollock on Bill of Lading Exceptions, published in London in 1895 (at p. 35), says: "The exception of `fire' protects the ship owner from all loss or damage by fire while the cargo is in his custody under the contract of carriage, unless the fire has been caused by the negligence of himself or his servants."
An interesting case, which was decided, as it appears by the report, after five days' argument, is that of Hong Kong Shanghai Banking Corporation v. Baker (7 Bombay High Court Repts. 186), decided in 1870. In that case the goods were to be delivered at the port of Bombay and the bill of lading contained the exception, "the act of God, the Queen's enemies, fire and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature or kind soever excepted." In that case the master, according to the custom of the port, had landed the goods on the government custom house pier some fifteen days after arrival, and a loss had occurred. WESTROPP, Ch. J., said: "Even assuming that his liability as a common carrier continued we concur * * * in thinking that the master having landed the goods according to the custom of the port, within a reasonable time after the entry of the vessel, and being free from any imputation of negligence or breach of duty, is protected by the special exception of `fire' contained in the bills of lading. * * * The use of the word `other' before dangers and accidents of the seas, etc., in the present bills of lading cannot, we think, render fire a peril of the sea, or limit it to fire on board the ship. The reasonable mode of construing the contract contained in the bill of lading is that the exceptions are coextensive with the liability. Were we to apply the word `other' so as to cut down the ship owner's and master's protection against fire to fire occurring on board the ship, we should be equally bound to apply it in the same manner to limit the exception of the acts of God and the Queen's enemies, so that if the goods, even though landed after the expiration of the fifteen days contended for by the appellants, were while yet undelivered, to be destroyed by lighting or by a hostile force at war with the Queen, the ship owners and master would be unprotected. This, we do not think could have been the intention of the parties. * * * The language of the five bills of lading in this case leads to the conclusion that the exception of fire is coextensive with the contract to deliver, and does not limit the protection to the time during which the goods are in the ship."
In Scott v. Baltimore, etc., Steamboat Co. (19 Fed. Rep. 56), where the bills of lading excepted dangers of the sea, fire, etc., and the goods were burned while on the wharf awaiting shipment, the court held that the defendant was not liable, saying: "It is difficult, therefore, to see why, if he stipulates generally for exemption from losses from fire, he should not be understood to mean exemption while the goods are in his possession preparatory to their being laden, as well as afterwards. In most instances there must be some interval of time between the reception of the goods and their being actually laden on board the vehicle of transportation, and as the law sanctions contracts by which the carrier exempts himself from risks of fire, it seems to me it would be a very strained and forced construction of these contracts now before me to hold that the exemptions in them from `fire, leakage and breakage' do not apply to losses from those risks while on the wharf, because they are mentioned in the same sentences with other risks which are only encountered on the voyage itself."
This language was quoted with approval in the case of The Egypt (25 Fed. Rep. 320) and the case was cited with approval in Constable v. National Steamship Co. ( supra), where Mr. Justice BROWN said: "No good reason, however, is perceived why, if a wise policy requires the exemption of the carrier from a fire occurring without his fault, such exemption should not extend to any such fire while the goods are in his possession and under his control, or at any time before actual delivery to the consignee. But, however this may be, there can be no question of the power of the carrier to extend his statutory exemption from fire to such as occur after the discharge of the cargo, by special stipulation to that effect in the bill of lading. * * * Indeed, a general exemption from the consequences of fire has been held to extend not only to fires happening on board the vessel, but to fires occurring to the goods while on the wharf awaiting transportation." (Citing the Scott Case, supra.)
I reach the conclusion that as the possession of the goods at the time of the fire was that of a common carrier by water and that as its liability for their loss was that of a common carrier, upon principle and authority the exemption in the bill of lading applied to it as common carrier so long as its liability as such carrier continued.
There is another ground for the exemption in that in this bill of lading it is provided that "no such carrier or party in possession shall be liable for any loss or damage resulting from fire." If it had ceased pro hac vice to be a common carrier in its relation to these goods, it certainly was a party in possession, so that in no event would the plaintiff be entitled to recover.
It follows that judgment should be directed upon the submission for the defendant, with costs.
INGRAHAM, P.J., LAUGHLIN, SCOTT and MILLER, JJ., concurred.
Judgment ordered for defendant, with costs. Order to be settled on notice.