119 F. 808 | 3rd Cir. | 1903
On July 19, 1900, the New York, Philadelphia & Norfolk Railroad Company contracted with the agents of R. A. Lee & Co., of Charlotte, N. C., for the transportation of 300 bales of compressed cotton from Norfolk, Va., by rail to Philadelphia, and thence by steamer of the American Line, appointed to sail on August 11, 1900, to Liverpool, England. Accordingly, the said railroad company afterwards issued its through bills
*810 "International Navigation Company.
“Philadelphia, September 0, 1900.
“Mr. F. H. Meyers, Philada.—Dear Sir: Since my letter of August 27th, offering to enter into a new arrangement, and carry forward the cotton on the next voyage of the Ikbal, provided it was proven free from danger, another fire has occurred on September 2d on car N. & W. 20,888, which, from all the attendant circumstances, the entirely spontaneous nature of the fire occurring inside a loaded car, the long period elapsing before it manifested itself, etc., indicates such a dangerous condition in the cotton that we cannot now, in safety to our ships, carry it forward under any circumstances. We regret that such is the case, and h'ad hoped, prior to this lkst fire, that all further danger had passed.
“Yours truly, . Lee R. MeKinstry, East-Bound Freight Agent.”
The defendant sent prompt notice directly to R. A. Lee & Co. of this refusal of the American Line to carry the cotton forward under any circumstances, and urged them to take steps to dispose of the cotton, and to act at once. By letter of September 13th, R. A. Lee & Co. informed the defendant that they could not interfere, because (as they stated) they had sold this cotton to A. J. Buston & Co., of Liverpool (the plaintiff); and they further stated in their letter: “Mr. A. J. Buston sailed from Liverpool on the 7th inst. for New York, and we wired him at New York to-day to .call at Philadelphia on his way south to look after this cotton.” Not having received any instructions as to the disposition of this cotton, the defendant, on September 18, 1900, caused it to be stored for safekeeping in the warehouse of D’Olier & Co., in Philadelphia. Before putting it into the warehouse, D’Olier & Co. examined the cotton, to see whether it was safe to take on storage, and, finding it to be free from danger, stored it in their warehouse, where it was thereafter kept ready for delivery to the owner or upon his order. R. A. Lee & Co., it appears from the evidence in this case, had drawn drafts (with the bills of lading indorsed and attached) on the plaintiff for the value of the cotton here in question, and these drafts the plaintiff accepted in Liverpool in ignorance of the fire, and subsequently paid them. On or about August 12th the plaintiff heard by cable in Liverpool that the 50 bales of cotton had been burned. The steamer of August the nth arrived at Liverpool while the plaintiff was there, without any of the cotton, and this the plaintiff then knew. He testifies that he sailed from Liverpool to New York on the 4th or 5th of September. Upon his arrival in New York (and certainly before September 20th) the plaintiff was fully informed of all the facts touching this cotton. Mr. Lee, of the firm of R. A. Lee & Co., and Mr. Putnam, an insurance adjuster (both of whom knew of the storage of the cotton with D’Olier & Co.), met the plaintiff in New York, and advised him of all the circumstances. As early as September 20, 1900, the plaintiff had the fullest information of all that had occurred. Thereupon he took the position that he had nothing to do with the cotton until it was delivered to him in Liverpool, and claimed that R. A. Lee & Co. were bound to have it delivered to him there. Upon this point a dispute at once arose between the plaintiff and the shippers of the cotton. The plaintiff also set up a claim for the value of the cotton against the insurers. The
The facts, as hereinbefore stated, were shown by uncontradicted evidence, all of the evidence in the case coming from the plaintiff’s side. This suit was brought on December 10, 1901, by A. J. Buston, doing business under the name of A. J. Buston & Co., against the Pennsylvania Railroad Company, to recover the sum of $12,828.80, which the plaintiff had paid for the 250 bales of cotton, and also special damages alleged to have been sustained by him “by reason of the action of the defendant in not forwarding the cotton.”
The relation of the defendant to this cotton was altogether that of an intermediate carrier between the' initial carrier, which issued the through bills of lading, and the American Steamship Dine, which was to carry the cotton from Philadelphia to its ultimate destination. The defendant had not entered into any engagement whatever binding it to transport the cotton beyond its terminus adjacent to the wharves of the American Dine on the Delaware river. Upon accepting the cotton from the initial carrier, the defendant’s duty was to safely transport it to the point of connection with the American Steamship Dine, and there tender the cotton to that line. This the defendant did. It made an actual and timely tender of the cotton to the American Dine. The tender was refused because of the supposed dangerous condition of the cotton. The defendant promptly notified the initial carrier, and, through it, the shippers, of the facts, and asked for instructions. No instructions came. In response to an inquiry of the defendant, the American Dine made an offer to carry the cotton on its next outgoing steamer, upon certain conditions. This offer was immediately communicated to the shippers, but no reply was made. Then the American Dine notified the defendant that it would not, under any circumstances, carry the cotton. The defendant sent prompt notice of this peremptory refusal to the shippers, and called on them to act. Now, the shippers of this cotton were also the consignees thereof. The first information of the plaintiff’s title came to the defendant in the shipper's letter of September 13th, in which the shippers wrote that the plaintiff had sailed for New York, and that they had wired him there to come to Philadelphia, and look after the cotton. This was the situation on September 18th,—more than a month after the tender and refusal,—and we think that, in the absence of instructions from any quarter, the defendant was fully justified in depositing the cotton for safe-keeping in the warehouse of D’Olier & Co., to await instructions. The general rule of law is that 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 further 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 take care of the goods while awaiting instructions. Having done this; the liability of the carrier as such will cease, and the liability of a warehouseman be substituted. Elliott, R. R. §§ 1432, 1449; Schouler, Bailm. & C. § 609; Johnson v. Railroad Co., 33 N. Y. 610, 612, 88 Am. Dec. 416; Rawson v. Holland,