53 N.J.L. 617 | N.J. | 1891
The opinion of the court was delivered by
Braun, the plaintiff below, in 1883 was a wholesale dealer in coal at Philadelphia. McNeal, who is-
On the 14th of June, 1883, McNeal ordered from the-plaintiff ninety-eight'tons of lump and steamboat coal, to be-delivered at Burlington, at $4.10 a ton delivered. The coal' was shipped in a barge called “ The Wayward,” on the 21st of June. The barge arrived at Burlington on the 23d, but it was not until the 26th that she was laid alongside of the-wharf. On the afternoon of that day the defendant’s foreman notified.the captain of the barge to place it alongside of th.edefendant’s wharf. In order that the boat might be so placed' that the steam-hoist could be used for unloading, the boat was-separated into its two parts. The forward part was made fash to the wharf, being separated from the wharf by a float about three feet wide, furnished by the defendant, for the purpose-of steadying the boat in a position that was necessary for the-working of the iron buckets on the steam elevator. The after part of the boat was moored on the river side of the other part.
When the forward compartment of the boat-was placed in* position, the buckets of the hoisting works were lowered upon* the boat, and preparations were made by the defendant’s servants for unloading the coal. They completed their preparations about ten minutes before six o’clock, and stopped work, at six, the usual time for quitting work. During the night this compartment of the boat sank with the coal that was-in it.
The compartment that was moored in the river remained in safety. After the sinking of the forward compartment,, the coal that was in the other compartment was unloaded and taken by the defendant. The suit was for the whole quantity of coal sold, but the controversy at the trial was with respect to the coal that was sunk and entirely lost. Under the-charge of the court,'the jury found for the plaintiff the full contract price for the entire shipment.
The order for the coal was given by the defendant to Ark-less, the agent of the plaintiff, at the plaintiff’s place of busi
25 tons lump.
73 tons steamboat.
98 Captain to tend guy.”
The contract price of $4.10 a ton was the price of the coal ■delivered at Burlington. If the defendant paid freight pursuant to the direction in the bill of lading, the freight paid was to be deducted from the contract price.
Responsibility for loss in transportation, in carriage by sea, has occasioned considerable discussion in the English courts. The rules on this subject are stated by Lord Cottenham in Dunlop v. Lambert, 6 Cl. & F. 600, 619, 620, 621, and by the Court of Queen’s Bench and the Exchequer Chamber in The Calcutta Company v. DeMattos, 32 Law Jour. Q. B. 332; 33 Id. 214; and particularly by Mr. Justice Blackburn, whose opinion in that case is quoted at considerable 'length in 1 Benj. Sales (Corbin’s ed.), § 503, and more fully in Blackb. Sales (Blackstone’s ed.) *234.
It is sometimes stated, as a general rule, that delivery to the carrier is delivery to the consignee, and that the goods are to be carried to their destination at his risk. But an examination of the decisions to that effect will show that this doctrine prevails only where the contract of sale, as between the ■consignor and consignee, was concluded at the place of ship
The DeMattos case, abo-ve cited, was decided in the Queen’s Bench by an equally divided court, and in the Exchequer Chamber there was a diversity of opinion among the judges. But on the question of law pertinent to this case there was entire unanimity of opinion among the- judges in both courts. The contract of sale bad been negotiated by correspondence, and the material facts were briefly these r DeMattos contracted to deliver the company one thousand tons of coals, delivered at Rangoon, alongside, &c., at forty-five shillings a ton—payment, one-half by bill at three months on- handing over bilk
In the Exchequer Chamber the majority of the court con■curred in the view’s of Blackburn and ’Mellor, JJ., in the
It was undisputed in the case now before the court, and, in fact, was conceded by the plaintiff’s counsel, that delivery of the coal by the plaintiff, at Burlington, at his own expense, was a material term in the.con tract of sale. Under-a'contract •of this sort, delivery of the coal on board the barge was' delivery to the master as the plaintiff’s bailee or agent to perform for him the act of delivery in execution of his contract. 1 Benj. Sales (Corbin’s ed.), § 566. Meanwhile, and until •delivery was consummated in such a manner as to be effectual as between vendor and purchaser, the coal was ¿t the plaintiff’s risk.
On the main issue, which the learned judge declared to be the question whose loss was the coal which sank, his instruction was that this issue would depend upon whether the sale •had been completed before the loss occurred ; that where parties have bargained, the one that he will sell and the other that he will buy, the dirty rests upon the seller to deliver the ¡article in pursuance of the agreement he has made, and that to complete the sale there must be an acceptance by the purchaser of the article which he purchased, in accordance with that agreement; that when that has been done “ the sale is •completed, and any loss after that time falls upon the man who bought. I mean any loss which is the result of no wrongful or intentional negligence of the parties.”
The transaction between the parties was an order for a certain quantity of coal, part lump coal and part steamboat coaly of an approved quality. It was in effect a contract of sale by sample. On such a sale of goods it is a condition implied by law that the buyer shall have a fair opportunity, by examining the goods, to satisfy himself that they are in accordance with the contract. 2 Benj. Sales (Corbin’s ed.), §§ 910, 1025, 1042; Isherwood v. Whitmore, 11 Mees. & W. 347; Startup v. McDonald, 6 Man. & G. 593; Croninger v. Crocker, 62 N. Y. 152. And under a shipment of goods by a carrier the consignee is entitled to inspect and examine the goods to ascertain whether they correspond with the invoice, and to a reasonable time within which to receive and remove the goods. For that purpose a reasonable time within usual business hours must be allowed, and during that period the liability of the carrier as carrier remains undischarged. Bradstreet v. Heron, Abb. Adm. 209, 214; Salmon Falls Manufacturing Co. v. The Bark Tangier, 1 Cliff. 396; Dibble v. Morgan, 1 Wood 406; The Tybee, Id. 358, 363; The Barque Idd v. Kemball, 8 Ben. Adm. Pr. 297; 5 Myer Fed. Dec., “Carriers,” §§ 802, 803, 846, 852, 1009; The Eddy, 5 Wall. 481, 493; Price v. Powell, 3 Comst. 322; Dunham v. B. & A. R. R. Co., 46 Hun 245; Miller v. Steam Navigation Co., 6 Seld. 431; Hedges v. H. R. R. Co., 6 Robt. 119; reversed in Court
The acts done by the defendant’s servants before they quit work were of a two-fold character. First. In directing the barge to be laid alongside of the wharf for unloading. The captain made the boat fast to the wharf and remained in charge during the night. The designation by the defendant of his wharf as the place for unloading, was an act in performance of the defendant’s duty as consignee to provide a place for the discharge of the cargo. Second. In the preparations for unloading. The barge was laid alongside the float about ten minutes before six. The buckets were lowered down upon the barge, and possibly a small quantity of coal was unloaded. The hands quit work at six, and replaced the buckets on the wharf. In these acts there was no evidence of an acceptance of the entire cargo, nor of a discharge of the carrier from his responsibility. Under the rules of law I have stated, the defendant was entitled to a reasonable opportunity to unload the entire cargo for examination, to ascertain whether the coal corresponded with his order and had arrived in good condition. By law he was secured these rights without discharging the liability of the carrier. Even if the goods had been accepted so as to pass title as between vendor and purchaser, the defendant, under the plaintiff’s undertaking to deliver them at Burlington, still had a right to a reasonable time to unload them under the plaintiff’s contract to transport and deliver the goods.
When the defendant’s employes quit work that evening the float was removed, leaving the barge riding free. She sank in a falling tide about three in the morning, listed over away from the wharf. There was no unusual condition of the tide or weather. One of the witnesses testified that after
The defendant asked the court to charge, first, that the defendant was entitled to reasonable time within ordinary business hours for discharging the cargo, and plaintiff was bound to furnish a boat that would float long enough to be discharged. This instruction was refused, and the court charged “ that a good delivery implied that the goods should be delivered in such a vessel as would stand the ordinary length of time and the ordinary stress of weather; that if even after acceptance it became evident that the loss was the result of the utterly unsuitable condition of the craft chosen by the plaintiff, then he still might be liable under one set of circumstances, and that is, if he had shown negligence in selecting that boat—that is, if in selecting the boat he had not acted as a prudent business man ought to have acted.”
To the refusal to charge as requested, and the charge as given, the defendant excepted.
Another request of the defendant was that the court should charge that the captain was the agent of the plaintiff, and that the plaintiff was chargeable with his want of care .and want of skill. This request was denied, and the court charged that “ the plaintiff is not responsible for the way the captain managed his boat. The captain was not his servant. The captain was his instrument to complete the sale, but he was not under his personal control as to how he should manage
To the refusal to charge as requested, and to “ that portion ■of the charge touching the law of negligence, and the relation which the plaintiff bore to the captain of the boat, and that ■the negligence of. the captain was not imputable to the plaintiff,” the defendant excepted.
These instructions might have been correct if the plaintiff had been the agent of the defendant in the shipment of the ■coal. But the plaintiff, instead of being an agent to procure transportation, had himself contracted to deliver the coal, and ■these instructions ignore the fact that under a contract of that sort the undertaking to deliver is absolute and unqualified, :and delivery of the goods is a condition precedent to the right of the vendor to sue for the contract price. If the goods be ■lost or destroyed before delivery is consummated, the vendor .must bear the loss. Under such a contract the carrier selected •by the vendor is his agent to perform the contract to deliver, ■and the vessel in which the goods are carried is pro hac vice the vendor’s vessel. For the negligence of the one and the • condition of the other, and, indeed, for failure to make delivery of the coal according to contract for any cause not due to the fault of the purchaser, the responsibility is. upon the vendor.
There is some conflict in the testimony as to whether the •contract was for delivery at the port of Burlington generally or alongside of the defendant’s wharf. Whether the contract was in the one form or the other is immaterial in this suit. The discharge of the cargo is the joint act of the freighter and the consignee. Each must participate in unloading the cargo, .and each has duties to perform in the premises. The consignee must provide a suitable place for discharging the cargo, and if •the contract of affreightment is for delivery at a port gener-ally the consignee, if he owns the entire cargo, has the option
The barge reached Burlington with its cargo in safety. The-defendant’s agent selected the defendant’s own wharf for discharging the cargo, and there was some evidence that the-wharf was out of repair and in a dangerous condition. The-consignee, in exercising his right to select the wharf, was-bound to provide a wharf which was safe as well for the vessel as for the discharge of the cargo. If the sinking of the barge-was caused by the condition of the wharf, without the negligence of the captain in the management and care of the boat, and was not due to its unseaworthy or defective condition, the-defendant must bear the loss.
The barge reached the port of Burlington on the 23d, and was not laid alongside, of the wharf until the evening of the-26th, on account of the crowded' condition of the wharf. The-detention of a vessel beyond the lay days named in the contract of affreightment, or for an unreasonable time if no lay-days are named, because of the crowded condition of the-wharf selected by the consignee, or for any fault of the consignee, will entitle the master to discharge the cargo elsewhere- and warehouse it, or to demurrage or reasonable damages for the detention of the vessel, but will not release him from his-duty to deliver the goods. Macl. Ship. (3d ed.) 438, 449; Carv. Carr. by Sea, § 627. No injury happened to the barge or its-cargo while it lay at port. The disaster occurred after it was-placed alongside of the wharf to be unloaded. The reasonable time allowed the consignee for unloading the cargo is to-be computed from the time the barge was laid alongside of the-wharf ready for the discharge of the cargo.
The exceptions above noted were well taken, and upon themt the judgment should be reversed.
Exception was taken to the admission of the deposition of' Arkless, taken under a commission, on the ground that it did!
For affirmance—None.
For wersiik-THE Chancellor, Chief Justice, Depue, Dixon, Knapp, Magie, Reed, Van Syckel, Brown, Clement, Smith.' 11.