37 F. 432 | S.D.N.Y. | 1889
The libelants, in September, 1887, received from Under-hill & Co., in this city, three bills of lading, reciting the shipment of 848 bales of cotton on board the steam-ship Arizona, for Liverpool, dated August 31st, September 1st, and September 2d. She sailed on Tuesday, September 6th. Only 289 bales went by the Arizona. The re■maining 559 bales were carried by the Wisconsin, of the same line, which left a week later, and arrived in Liverpool about 10 days after the Arizona. During this interval there was a fall of three-eighths of a penny per pound in the market price of cotton, to recover which this libel was filed.
The evidence shows that on the 24th and 26th of August preceding, written contracts were made between the libelants and the representatives of Underhill & Go., whereby transportation was engaged for “about 800 bales of cotton on board a steam-ship of the Guión line, expected sailing the 6th 13th September, agent’s option, subject to the terms and conditions of the form of the bill of lading approved by the New York Produce Exchange;” and that the bales in question were sent by the
When the permit provides for an option in transportation, by one or more steamers, as in this case, the shipping receipt given at the dock or press, for each lot delivered under such a permit, is required to be in the same form and to specify the names of both steamers; and the bills of lading, which in the usual course of business are obtained at Under-hill & Co.’s office in exchange for the shipping receipts, are also issued, as of course;, in the same form. In the present case seven different lots were delivered at the dock or press, under the permit; but all the shipping receipts that the libelants received therefor mentioned the ship Arizona only. The evidence shows that this was done without the knowledge or authority of Mr. Underhill, the only person authorized to determine by which vessel the goods shpuld go. It was the result of mere mistake, or misinformation, or misunderstanding, in the absence of instructions from Underhill & Co.; and it was apparently, in part at least, brought about by the libelants themselves. A groat number of the libelants’ “slips,” sent to the line by the car-men or lighter-men along with the goods, were produced in evidence, and all except one state that the goods were to go by the Arizona. The libelants had no right to send with the goods slips thus worded. They should have read “Arizona Wisconsin.” Although the subagents at the dock or at the press had also no right to act upon the libelants’ slips alone, such slips w'ere calculated to mislead, and they no doubt conduced to the mistake in the shipping receipts, if they did not alone cause it.
The option reserved to Underbill & Co. to send goods by the one steamer or the other, was an option beneficial to both parties; to the ship, because it enabled her to take higher priced freights for perishable goods that might be brought forward for transportation on the last day; or, if these were wanting, to fill up with the lower priced cotton. It was beneficial to the libelant, because the ship could afford to take the cotton at a lower freight, in view of the option reserved as to the time of forwarding.
The libelants’ claim rests entirely on their possession of the bills of lading, stating the transportation to be by the Arizona alone, as though the delivery of the bills.of lading to them were a final and absolute determination of the option previously reserved, and formed, from the moment of delivery, the only contract between the parties. Even had the bills of lading been deliberately issued by Mr. Underhill himself, it may be doubted whether they would necessarily have had any such effect. Until the libelants had acted upon the faith of such bills of lading, and,changed their rights or obligations, I see no reason why a’ previous determination to send by the Arizona might not have been revoked under the option in the original contracts. Notice of any such revocation would perhaps have been necessary for protection against any .subsequent claim by the shipper for damages incurred upon the faith of the bills of lading; but, so far as I perceive, for no other purpose. In this case the libelants in no way changed their situation upon the faith
Again, upon the evidence', Underhill & Co. had no authority to bind tiio respondent upon contracts of affreightment for transportation by any other vessel than the Arizona. The original contracts, therefore, were the obligations of Underhill & Co. only, and did not bind the' respondent. Under such a contract, the respondent could not become bound until the goods were delivered to the Arizona or her officers, or some other act was done amounting to a final appropriation of the goods to the Arizona, or which imported a contract to transport the goods per Arizona alone. Only Mr. Underhill had authority to make any such appropriation, or any such contract; and, as respects the 559 bales in question, he never made any such appropriation or contract. He did not exercise any such option, nor authorize the bills of lading or the shipping receipts in the form in which they were issued.
Still further, bills of lading, as executory contracts, have not the effect which the libelants ascribe to them. They import a receipt on board of certain goods, to be transported and delivered at the place of destination. The executory contract to transport extends only to the goods actually received on board, or within control of the officers of the ship or her representatives; and parol evidence is admissible to show that only part or none at all of those receipted for in the bill of lading were received, and the contract to convey is thereupon limited accordingly. In Pollard v. Vinton, 105 U. S. 8,—an action in personam,—Mr. Justice Miller says: “The receipt of the goods lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no valid contract to carry or to deliver.” Accordingly, it is the constant practice for the ship or her owners to limit their apparent responsibility under the hill of lading by proof that less goods were received. 1 Pars. Adm. 190; Carv. Carr, by Sea, § 69; Goodrich v. Norris, Abb. Adm. 196; The Saragossa, 2 Ben. 544; Sears v. Wingate, 3 Allen, 103, and cases cited; Querini Stamphalia, 19 Fed. Rep. 123; Robinson v. Railroad Co., 9 Fed. Rep. 140, 16 Fed. Rep. 57. There is manifestly no difference, as respects liability, between an action for not delivering the goods specified in the bill of lading, and an action for damages for not carrying the same goods. The contract in the bill of lading is the basis of both actions alike; and that contract is limited to the goods actually delivered to the ship, or to her representative, under it. Had Underhill been the agent of the Arizona only, a delivery of goods to him at the dock, under a previous contract, on the respondent’s account to transport them by that ship alone, would probably be deemed a delivery to the ship, and binding on her owner. But as he was the common agent of all the ships of the line, and had neither made any contract for the Arizona alone, nor appropriated the 559 bales to the Arizona, those bales were never delivered to the Ari
The present case very closely resembles that of The Lady Franklin, 8 Wall. 325, where a common agent of several independent vessels forming a “line,” as in this case, agreed to send the libelants’ goods by “one of the vessels of the line,” and did so; but a clerk, by mistake, and in ignorance of the facts, delivered a bill of lading as upon a shipment by another vessel of the line,—the Lady Franklin,—which was accordingly sued. That case was stronger for the libelant than the present, as most of the goods shipped on one of the other vessels were lost. Mr. Justice Davis, in delivering the opinion of the court, says:
“It would be strange indeed, if the owners of the Franldin were made to suffer because the common agent of all the boats had, through inadvertence, given a receipt for merchandise not on the boat, or in the warehouse even, but which was then on board other boats, on its way to its destination.”
The case of Pollard v. Vinton, supra, shows that the same rule is applicable to actions in personam. On principle and authority the libel must be dismissed, -with costs.