17 F. 698 | U.S. Circuit Court for the District of Eastern New York | 1883
This action is brought to recover of the owners of the steam-ship Bialto the value of 48 parcels of bolt-rope, being part of a shipment of bolt-rope and oakum in the Bialto, to be transported from Hull to New York, which were destroyed by fire at the burning of the Eagle pier on Sunday, the sixth day of November, 1881. The merchandise in question was transported under a bill of lading, which, among other tilings, contained a provision that “the,goods be taken from along-side by the consignee immediately the vessel is ready to discharge, or otherwise they will be landed by the master and deposited at the expense of the consignee, and at his risk of fire, loss, or injury, in tho warehouse provided for that purpose, or sent to the public store, as the collector of the district shall direct.” The steamer arrived at the Eagle pier, which was a covered pier, and her regular landing-place in New York, on the morning of Wednesday, November 2d. On Thursday, the merchandise called for by the bill of lading referred to, was landed in good order and placed by itself at an accessible part of the pier. On Sunday afternoon, November 6th, just at dark, a fire broke out in the oakum, which, with the bolt-rope in question, still remained upon the pier, and the pier, together with a large quantity of merchandise, including the packages in question, were burned, causing the loss sued for. The libel sets forth the bill of lading, and avers a non-performance of the contract. It proceeds upon the ground that at the time of the fire this merchandise was in the custody of the defendants as common carriers. These averments are denied by the answer, and the question at the threshold of the case is, what was the legal character of the defendants’ custody of the goods at the time they were burned? Upon this question my opinion is that when the goods were burned the defendants’relation to them as common carriers had been terminated, and they were then in the custody of the defendants as warehousemen. The evidence shows that the voyage was completed on Wednesday morning. On Thursday, November 3d, the goods wore duly landed at the usual landing and placed by themselves upon tho Eagle pier, at a place accessible to the consignees. The arrival of the vessel was known to the consignees on Thursday, and they procured the bill of lading to be stamped by the ship as proof that the goods described therein had arrived in the ship. They also entered the goods at the custom-house on Thursday, and on the same day they procured a permit to land the goods, which permit on that day they caused to be presented at the ship. They were acquainted with the course of business in discharging the steamer, and
It is quite evident from, the facts that, if the libelants had used ordinary diligence to remove their goods after they knew that their goods were upon the pier, they would have obtained all their goods early on Saturday, and no loss would have occurred. ‘
This case is not one of casual information of the consignee regarding the arrival of the ship containing his goods. The facts in proof here are sufficient to charge the consignees with actual knowledge, not only of the arrival of the ship with their goods, but that the goods would be at the Eagle pier awaiting removal by the consignees on Friday, and leave no room for the libelants to claim that the failure to remove their goods on Saturday arose from want of notice that they had been landed on, the Eagle pier.
The provision of section 2871 of the Revised Statutes does not affect the responsibility of the defendants. The libelants’ goods were not landed under general order, but upon a permit obtained by the libelants, and presented at the ship by them on Thursday.
These facts appear to me to warrant the conclusion that the relation of the defendants to the libelants’ goods, at the time of the fire, was that of warehousemen, and not that of common carriers. The case appears to come within the principle of the decision of the supreme court in Richardson v. Goddard, 23 How. 28, where it was held that a deposit of cotton in proper order, made with the knowledge of the consignee, upon a suitable pier, at midday on a weekday, in good weather, constituted a good delivery, and therefore that the ship-owner was not responsible for the destruction of the cotton by fire on the following night.' This conclusion would seem to dispose of the case, inasmuch as the libel proceeds upon the ground of' the defendants’ liability as common carriers.
But-assuming that, the libelants can recover under the libel upon the ground of the defendants’ neglect as warehousemen, and assuming further, but not deciding, that the provision of the bill of lading above quoted is not effective to relieve the defendants from liability for loss arising from a fire caused by the negligence of their servants, and occurring after the defendants had ceased to hold the goods as common carriers, I am of the further opinion that such a liability on the . part of the defendants has not been shown. The ease in this aspect is one for damages caused by negligence, and the burden is upon the libelants to show that the fire which destroyed their goods was caused.
For these reasons the libel is dismissed, and with costs.
See Straus v. Wilson, infra.