Goddard v. Mallory

52 Barb. 87 | N.Y. Sup. Ct. | 1868

By the Court, Mullin, J.

My impression on the argument was that the heading of the bill of lading, “ Atlantic Coast Mail Steamship Line,” was to be taken to be the name of the Atlantic Coast Mail Steamship Company, and therefore the bill of lading was to be treated as a contract with that company, and if so it was not competent to prove that it was in fact made with the plaintiff. But it appears by the evidence of the' witness, Livingston, one of the firm of Livingston, Fox & Co. agents for the defendant, the Mail-Steam Ship Company, and others, owners of vessels running to certain southern ports, that his firm advertised the vessels belonging to the several owners, as belonging to the Atlantic Coast Steamship Line. If this is a correct construction of the language at the head of the bill of lading, it follows that there is no person or corporation named on the bill as contracting for the carriage of the goods. It was competent, therefore, for. the plaintiff to show who was the owner of the vessel named in the bill of lading, by which the goods were to be carried.

•The defendant was concededly owner of the Euterpe, and liable upon the bill of lading.

It appears by the evidence of Mr. Livingston that his firm had clerks on the wharf, who signed bills of lading. Dayton was one of those men. Livingston & Co. were bound by the acts of Dayton, and the defendant was bound by any act which bound Livingston & Co. within the scope of their agency.

Where the practice is to issue bills of lading when goods are delivered on the dock, it is too late for the owner of the vessel to insist that a bill can only be issued after the goods were on board the vessel.

When the bill of lading is executed by the captain, it is very proper that he should require the goods to be on board before he signs the bill. But when the owner himself, or his agent, receives' the goods, he is at liberty to deliver the bill whenever he deems proper.

But it is said that neither Dayton nor Livingston & Co. had any power to make a contract binding the defendant to carry the plaintiff’s goods on any particular ship—that it was the agent’s duty to contract to carry on the first vessel, of the defendant sailing after the receipt of the goods.

The power conferred on Livingston & Co. by the defendant is not defined, and I am not aware of any rule of law, and no practice is proved, restricting an agent of an owner to contract to carry by the next vessel of the owner, sailing to the port of destination.

I cannot doubt but that Livingston & Co. had the power to make the contract in question.

But I do not think that Livingston & Co. or the defendant could send the goods by a vessel other than that named in the bill of lading, without assuming the whole risk of loss or damage to the goods while on such vessel. We cannot say that if the goods had gone by the Euterpe they would have been lost. Indeed, that vessel arrived in safety at her port of destination, and hence the plaintiff’s goods would, in all probability, have also arrived safely.

In the absence of evidence of a general custom controlling bills of lading in respect to the time and manner of shipment, we must assume that if the name of a vessel is inserted in the bill, it is because the owner designates her as the proper one to take the goods, having regard to the voyage and time of sailing. We know that insurers, as a general, if not universal rule, insist upon knowing the name-of the vessel in which goods are to be carried, and that they regulate the risk accordingly. To permit the carrier to transfer goods from the vessel named in the bill to another, would avoid the insurance, and impose upon the owner of the goods risks which were neither known to, nor contemplated by him.

[New York General Term, November 2, 1868.

It is_no answer to say that in this case there was no insurance, and hence the danger from the avoidance of a policy is not before us. We are inquiring what the rule of law is; and if it has not been settled, but is to be settled in this case, it is necessary in settling it, to take this consideration into the account, giving to it such weight as its importance demands.

If it is established that the owner of the ship may transfer the goods to another vessel at pleasure, it must follow that owners of goods cannot insure, or the insurance company must cease to consider the vessel as entering into the risk until one or the other thing is done—transfer cannot be permitted.

For these reasons, the judgment should be reversed, and a new trial ordered; costs to abide the event.

Ingraham, MulUn and FeeMam, Justices.]