Cope v. Cordova

| Pa. | Mar 27, 1829

The opinion of the court was delivered by

Rogers, J.

The substance of a bill of lading is a formal acknowledgment of a receipt of goods, and an engagement to deliver them to the consignee or his assigns. And this suit is brought ón an alleged breach of such a- contract in the non-delivery of a crate of merchandize shipped-on board the ship Lancaster from Liverpool, and consigned to Raphael Cordova in the usual form. -The goods were landed on the wharf of the • Liverpool packets, and whether this amounts to a delivery to the consignee is the principal question. It must be. conceded, that by the general custom, the liability of ship owners ,is at an end when the goods are landed at the usual wharf, and this seems to be taken by the whole court as a position not open to dispute in the strongly contested case of Hyde v. The Trent and Mersey Navigation Company, 5 T. R. 394. 3 Wilson, 429. 15 Johns. 41. 2 W. Black. 916. 4 T. R. 581.

The usage in France, although not uniform, in every particular, goes to the whole' extent of the English doctrine. At Rochelle, when the vessel is moored at the wharf, the merchant freighters, at their own expense and risk, have their merchandize deposited upon the deck of the vessel. From the time when they reach the deck, it is the business of the hands on board to receive and place them in their proper situation. In unlading, the freighters have them taken, in like manner, from the deck by their porters, to lower them' to' the wharf, from which time they are at' the merchant’s risk, without any liability on the part of the master of the vessel, if they happen to sustain any damage as they are lowered from the vessel. At Marseilles, it is the business of the master to put the merchandize on the wharf, after which he is discharged. 1 Valin, 510.

And this rule of the French commercial code is cited, with approbation, by the learned commentator, in page 636 of his Treatise on the Marine Ordonnance. As the master, in conformity with the prevailing usage in this respect, upon his arrival deposits in the custom house a manifest or general list of the cargo, with a designation of all the individuals to whom each parcel of the merchandize should be respectively delivered, and as there are always. officers of the customs who attend to the unlading, to superintend, and make a list of all the merchandize which leaves the vessel, for the purpose of ascertaining whether the manifest of the cargo which has been furnished is accurate and faithful, and by this means the lists of these officers constitute a proof of the landing of the merchandize, it is the end of the engagement which the master has contracted by the bill of lading. If then disputes arise, it is only when in the bustle of a hasty discharge mistakes occur on th.e part of those who convey the merchandize to the warehouses, by introducing articles into one which ought to have gone to another. The error is almost always discovered by ascertaining what parts of the cargo of the vessel have been conveyed to the different warehouses. “ But if it happens,” says the commentator, “that the error cannot be discovered, the master is always discharged .when it appears by the list of the officers of the royal customs that he has caused all the merchandize in his bills of lading to be placed on the wharf. The ordinances of Rochelle and Marseilles are the text from which, in the manner of our own commentators, he proceeds to. deduce the general custom. I understand from the observations- of the commentator, that the usage is not confined to Rochelle and- Marseilles, but that in France, as in Great Britain, it is co-extensive with the limits of the kingdom; and in this country we are not without authority to the same purpose. The usage has been found to prevail in a sister city, as appears from a case the name of which is not now. recollected, lately determined by Judge'Irving, in New York. The same point has also been ruled by the Supreme Court of Massachusetts, in Chickering v. Fowler, 4 Pick. 371. A promise by a master of a vessel to deliver goods to a-consignee, does not require that he should deliver them to the consignee personally, or at any particular wharf. It is sufficient, if he leaves them at some usual place of unlading,, giving notice to the consignee that they are so left.

There is an obvious policy in commercial nations conforming to the usages of each other, and it is also important that there be a uniformity of decisions in our domestic tribunals on mercantile questions. As there will be great convenience in the local usage conforming to the general custom, it will be incumbent on those who maintain the contrary, to make the exception from the rule plainly appear.

In unloading a vessel at the port of Philadelphia, it is -usual as soon as articles of bulk, such as crates, are brought upon deck, to pass them over the side of the ship, and land them on the wharf. The owners station a clerk on the wharf, who takes a memorandum of the goods, and the' day they are taken away, and this for the information of his employers. - A manifest or report of the cargo is made by the master, and deposited at the custom house, and the collector, on the arrival of the vessel within his district, puts and keeps on board one or more inspectors, whose, duty it is to examine the contents of the cargo and superintend its delivery. And nó goods from a foreign port can be unladen or delivered from the ship in the United States, but in open day, between the rising and setting of the sun, except by special license; nor at any time without a permit from the collector, which is granted to the consignee upon payment of duties or securing them to be paid. The holders of a bill of lading are presumed to be well informed of the probable period of the vessel’s arrival, and. at any rate such ■ arrival is matter of notoriety in all maritime places. The consignee is previously informed of the shipment, as it is usual for one of thé bills of lading to be kept by the merchant, a second is transmitted to the consignee by the post or paeket, while the third is sent by the master of the ship together with the goods. With the benefit of all these safeguards, if the consignee uses ordinary diligence, there is as little danger in this country as in England and France, of inconvenience or loss, whereas the risk would be greatly increased if if should be the duty of the ship owner to see to the actual receipt of the goods, and particularly in the case of a general ship, with numerous consignments on board, manned altogether by foreigners unacquainted with the language.at the port of delivery." I have taken some pains to ascertain the opinion and practice of merchants of the city on this question, which is one of general concern. My inquiries have, resulted in this, that the goods, when. landed, have heretofore been considered at the risk of the consignee, and that the general understanding has been that the liability of the ship owner ceases upon the landing of the goods at the usual wharf. I see no reason to depart from a rule which.has received such repeated sanctions, from which no inconvenience has heretofore resulted, and which it is believed in practice has conduced to the general welfare.

If the special verdict had found a uniform usage in the one way or the other, we should have held ourselves bound by the custom; for I fully accede to the principle, that the mode of delivery is regulated by the practice of the place. The contract is supposed' to be made in reference to the usage at the port of delivery. ' But if no usage had been found, we hold it to be equally clear, that we should be governed by the general custom.

The ease finds that the consignee obtained' a permit for the landing of the goods, that they were landed on the wharf, that he was aware the master was employed in discharging his cargo, and that the consignee sent, his own porter to receive and take them- away; that he inquired for them, but did not receive them. If, under such circumstances,the goods were lost, it was in consequence of his own negligence or his servant’s. It was the duty of the porter, instead of merely inquiring, to stay till he had actually received the goods.

It is beside the question to- say that perishable articles may be landed, at improper times, to the great damage of thé consignee. When such special cases arise, they will be decided on their own circumstances. This goes on the ground that the' master has acted with good faith, and in the usual manner, and in such case it is the opinion of the court that the ship owners are discharged.

We would wish to be understood as giving no opinion on the law which regulates the internal or coasting trade, to which I understand the case of Ostrander v. Brown and Stafford, 15 Johns. 39, to apply. We do not consider this decision as. interfering with the principles of that case.

Judgment reversed, and judgment for the defendants below upon the case stated.