| NY | Dec 13, 1881
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *192 We are inclined to accept the plaintiffs' construction of the transportation agreement which has occasioned the present dispute. It seems to us reasonable and just, and most in harmony with the apparent intention and understanding of the parties. Upon that construction the contract was substantially that if the plaintiffs should deliver the cotton to the steamship company at its pier, in reasonable time for taking it on board theMinnesota before that vessel's sailing day, it should be taken to Liverpool upon that steamer; otherwise, upon the Nevada, advertised to sail a week later. This construction leaves open only the question whether, upon the undisputed *194 facts, the cotton was presented for transportation within such reasonable time as to make it the defendant's duty to ship it by the Minnesota, or whether they were justified in loading it for a later departure by the Nevada. The advertised sailing day of the earlier steamer was October 27th. The engagement to transport the cotton was dated October 14th. At that date the cotton was on its way from Mobile to Savannah, by rail, and from the latter port by the steamer Mercedita. The period of its arrival at the port of New York was uncertain. Neither shipper nor carrier could accurately foretell such period. That uncertainty was the determining element in shaping the form and substance of the contract. It dictated its alternative character, and inwove itself into the texture of the agreement between the parties. On the one hand, it prevented the plaintiffs from absolutely agreeing to ship the cotton by the Minnesota. They could not wisely have made that agreement, and did not. If they had so contracted, the carriers could have relied upon it, and safely and prudently rejected other freight offered for shipment in order to reserve the necessary room. If for that reason compelled to sail without a full cargo, and so subjected to a loss of freight, their remedy would have remained against the shippers in default. But the same uncertainty which justifies the plaintiffs in not agreeing absolutely to furnish the cotton for theMinnesota, also justified its owners in not agreeing absolutely to carry it by that vessel. Clearly, they were under no obligation to reserve room for it at the peril of losing an equal quantity of freight. They were not bound to reject freight ready and offered on their pier upon the bare possibility that the cotton might come. They had the right to accept what was offered, as it came, and so make sure of a full and sufficient cargo. If the cotton came upon their pier while room was left — before a sufficient cargo, accepted and ready for loading, was proffered — they were bound to receive the cotton; but if, when it came, the cargo accepted and ready was complete, then they were not bound to carry it upon the Minnesota, but were at liberty to load it upon the Nevada. As matter of fact, the cotton *195 arrived upon the pier only the day before the Minnesota sailed. When it arrived, the proof shows, without dispute, that the cargo of that steamer was complete; that, in the usual and regular course of business, enough of freight had been already delivered and accepted, and was in the custody of the carrier for shipment, to fill out the steamer's load and leave no room for any thing more. For that reason we think the cotton was not offered as freight within a reasonable time. It would be unreasonable to leave the shippers loose and hold the carriers fast. Their rights and duties should be measured by one and the same just standard. As the one was not bound to engage transportation upon an uncertainty, so the other was not bound to peril the loss of a full cargo upon the same uncertainty. What the latter could fairly do to save room for the cotton without danger of an incomplete load, it was their duty to do; but they were not obliged, on the day before the sailing of the vessel, to reject any part of the full cargo present and ready for shipment before the arrival of the cotton.
To this view of the rights of the parties, the learned counsel for the appellants makes a double answer. He says, first, that it was an indiscretion and fault of the defendants, that they engaged other cotton, by which the plaintiffs' cotton might be crowded out, without ascertaining whether the plaintiffs' cotton would be delivered for the Minnesota. But they had no means of ascertaining that fact in advance of its actual arrival. It was not expected that they should know until the bales came upon their pier. They were not bound to assume that it would come at all before the sailing day Were they not at liberty, fairly, and in the usual and ordinary way, to accept the full cargo tendered on the dock, and in the press, and was it a fault or indiscretion to do so? We think not. To hold otherwise would work the injustice of requiring them to refuse freight offered and ready to be loaded upon the uncertain expectation of freight not arrived, and which possibly might not come at all. The second answer made has even less of justice in it. We are told that when the cotton arrived, and it became apparent that it could not go upon the Minnesota, *196 the defendant should have so informed the plaintiffs, in order that the latter might have protected themselves from loss from a declining market, by arranging for shipment on some other steamer. This view of the contract seems to go upon the idea, that while it bound the carrier, it left the shipper free. By its terms, if the cotton did not come in reasonable time for the first vessel, which, as we have seen, actually happened, then it was to go on the second. The carriers loaded it on the Nevada, as had been agreed. They fulfilled their contract; were they bound to suspect that the shippers wanted to break it, and take room on some other vessel? The duty which the carriers owed was the duty which they performed. It was not needed, so long as they performed their contract, that they should tell the other party that they were doing it, least of all for the purpose of enabling such other party to repudiate his side of the agreement.
We have not overlooked the fact, which is pressed upon our attention, as tending to characterize, and even to modify the terms of the contract, that upon the arrival of the cotton upon the pier, it was received by an agent of the steamship company who gave receipts for it, each of which purported to be "memorandum of cargo on board steamship Minnesota." These receipts were shown to be merely acknowledgments that the property had passed into the custody of the carrier, and to be surrendered upon receipt of the bills of lading, which themselves constituted the contract of shipment. Bills of lading upon theMinnesota were refused; we do not think these memorandum receipts in any manner varied the contract or changed the rights of the parties; the fact they asserted was simply a mistake. They did not purport to substitute a new contract in the room of the old one. (Shelton v. Merch. Dis. Trans. Co.
Order of the General Term affirmed, and judgment absolute for the defendant upon the stipulation granted, with costs.
All concur.
Order affirmed and judgment accordingly. *197