16 Ga. App. 362 | Ga. Ct. App. | 1915
Canby brought suit against the Merchants and Miners Transportation Company for the value of a shipment of lumber, which it was alleged was destroyed by fire after delivery to the carrier. By demurrer the defendant compelled the plaintiff to file an amendment, by which the bill of lading covering the shipment was set forth and virtually became the groundwork of the action. The bill of lading contained the following clause: “Sec. 9. Except in case of diversion from rail to water route, which is provided for in section 3 hereof, 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 exceptions 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 ñre, 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 apparatus,
We can not agree with the able and indefatigable counsel for the plaintiff as to the pertinency of the question whether the fire on the wharf before the lumber was consigned to the ship as cargo was a marine risk; nor is there any difference, in our opinion, between the exemption from liability for fire loss, contained in the bill of lading, as referable to a loss which marine insurance would cover, and exemption from liability for loss by fire which marine insurance would not cover. Conceding that the defendant is a common carrier and liable as an insurer, unless exempted by statute or by contract, and that the lumber in question, not having been loaded on board ship nor consigned to any particular ship as cargo, was not subject to marine insurance and did not fall within the exemption provided by section 4383 of the Revised Statutes of the Dnited States (D. S. Comp. St. 1913, § 8030) in case of fire on board ship, still the inquiry as to whether the lumber was a marine risk or an ordinary fire risk is immaterial, since the plaintiff alleges that he had delivered the lumber to the defendant for immediate
1-2. The controlling question in the case is whether a carrier engaged in interstate commerce by water can so stipulate in a contract of carriage 'as to protect itself from liability in case the cargo delivered to it for carriage is destroyed by fire after it has been accepted for shipment. It is to be borne in mind that the usual presumption of negligence applicable to railroads does not extend to carriers engaged in transportation by water. So that a consideration of the presumption of negligence is aside from the question here presented. If the defendant had been charged with the loss of goods delivered for intrastate shipment (since it could not defend against proof of loss of the goods in its custody except by showing that the loss was due to the act of God or the public enemy), proof of the loss would shift upon the defendant carrier the burden of showing that it had not been guilty of negligence. However, the petition shows that an interstate shipment is involved, and in our opinion the rule as to the burden of proof in interstate shipments differs from that which has just been stated to be applicable to intrastate shipments. It is conceded, and must be conceded, that
The precise point now before us seems to have been decided in Cau v. Texas & Pacific Ry. Co., 194 U. S. 427 (24 Sup. Ct. 663, 48 L. ed. 1053). It is true that the Cau case was decided prior to
In our opinion, the inclusion of the exemption from liability for loss in case of fire, in the contract of affreightment which was accepted by the shipper, presents an insuperable obstacle to any recovery on the part of the plaintiff, and for that reason the trial judge correctly sustained the general demurrer to the petition. It matters not that there was no alternative contract which could be presented to the shipper, and that he did not sign the contract in question in order to obtain the benefit of a lower rate of freight. The carrier could not have offered any lower rate of freight than that prescribed by the rule filed with the interstate-commerce commission without subjecting itself to the penalties provided by law. But the shipper, in entering into the contract, knew that insurance upon the shipment was expressly excluded, and voluntarily entered
3. We take it to be well settled that the consignee in a bill of lading is the proper party to maintain an action arising upon a breach of the contract of carriage, and the lower court would have been authorized to sustain the general demurrer in this case, for the reason that the shipment was consigned to the order of Heard Lumber Company, with direction to “notify Henry M. Canby,” if nothing more than this had appeared. Raleigh & Gaston R. Co. v. Lowe, 101 Ga. 331 (28 S. E. 867). However, the insistence of counsel for the defendant upon this point can not be sustained, and the merit of the judgment of the trial court must rest entirely upon the exempting condition of the contract which we have already considered, since an inspection of the record discloses that the bill of lading was endorsed in blank by “Heard Lumber Company, by C. W. March, attorney.” “The transferee of a bill of lading may maintain an action ex contractu against the carrier for failure to deliver to him all or any portion of the goods specified in the bill of lading; and this is true whether the loss of the goods or the shortage occurred before or after he acquired title to the bill of lading.” Askew v. Southern Railway Co., 1 Ga. App. 79 (58 S. E. 242).
The court did not err in sustaining the general demurrer, because the stipulation in the contract relative to fire expressly relieved the carrier from liability for loss occasioned by fire; and it is not affirmatively alleged in the petition that the fire or the consequent destruction of the shipment directly resulted from that negligence on the part of the carrier (either in causing the fire in the first instance, or in omitting proper efforts to save the shipment after the fire was discovered) from the results of which the law will not permit a carrier to exempt itself by contract.
Judgment affirmed.