82 F. 681 | N.D. Cal. | 1897
Libel to recover damages alleged to have been susrained by the breakage of certain articles of hardware shipped at the port of New York on board the ship Henry B. Hyde, to be thence carried by said ship and delivered to the libelants at the port of San Francisco. The evidence shows that the articles of merchandise referred to in the libel were received on board the ship at New York in good order, and w:ere broken before the ship delivered the same to the libelants at San Francisco. The several bills of lading under which the merchandise was shipped each contained the following stipulations, plainly stamped upon the face thereof:
“Weight, contents, and value unknown. Not accountable for leakage, rust, or breakage. Deliverable within reach of vessel’s tackles. If the consignees neglect or refuse to receive their goods for twenty-four hours after being notified of their being ready for delivery, the same -will be landed and stored for account and at the risk and expense of whom it may concern; the vessel having a lien upon the goods for amount of freight charges and expenses.”
In addition to the foregoing, there was also stamped npon its face, in still larger letters, in the space just above the signature of the person signing the hill of lading for the ship, the words, “Stamped Clauses Included.” Neither of the bills of lading was signed by the shipper, but all of them were signed in behalf of the carrier as follows: “For the Captain, W. A. Robinson, A tty.,” — and were delivered to and accepted by the shippers, and introduced by the libel-
The libelants do not dispute the general proposition that a carrier may, by special contract with the shipper, exempt himself from the liability imposed by the general rule of law which makes common carriers insurers of goods intrusted to them against all loss or damage not occasioned by the act of (tod or the public enemy; but -they insist that, as they did not sign the bills of lading under which their goods were shipped, they are not bound by the special stipulations contained therein, and which are above set out; and in support of this contention reliance is placed on the case of Brittan v. Barnaby, 21 How. 527, and section 2176 of the Civil Code of this state. I do not think the opinion in Brittan v. Barnaby, when considered as a whole, and with reference to the particular question before the court in that case, can be deemed authority for the proposition contended for by the libelants. The qúestion before the court in that -case was in relation to the effect to be given an unsigned memorandum stamped on the back of the bill of lading, not referred to upon its face, and in the absence of proof that the shipper ever assented to it as a modification of the contract appearing upon the face of the bill of lading. Upon such state of facts the court there held, and properly, that such unsigned memorandum constituted no part of the contract of carriage; and that is all that was decided upon ■that point. It is true, the court, in the course of its opinion, after stating that the carrier may enter into particular engagements Avith the shipper, and that such stipulations are not uncommon between shipowners and shippers in charter parties and in bills of lading, proceeded to say:
• “But, when, clone in either, they must he made in words sufficiently intelligible to indicate an agreement that the operation.of the law merchant in respect to ■those instruments is not to prevail; and the stipulation must be in writing, and he signed hy the parties, before it can he received as an auxiliary to explain how the contract is to be performed.”
But, when the foregoing quotation is read in connection with its context, it becomes apparent that the expression relied upon by the libelants here, to the effect that bills of lading containing such stipulations must be signed by all the parties before such stipulations can be given effect as a part of the contract of carriage, was inadvertently used. A bill of lading is an instrument wrell known to the commercial law, and according to mercantile usage is signed only by the master of the ship, or other agent of the carrier, and delivered to the shipper. When thus signed and delivered, it constitutes not only a formal acknowledgment of the receipt of the goods therein described, but also the contract for the carriage of such goods, and defines the extent of the obligations assumed by the carrier. The Delaware, 14 Wall. 579. In my opinion, the rule which governs the
“Bills of lading are signed by the carrier only; and, where a contract is to be signed only by one parly, the evidence of assent to its terms by the other party consists usually in his receiving and acting upon it. This is the ease with deeds poll, and with various classes of familiar contracts; and the evidence of assent derived from the acceptance of the contrael without objection is commonly conclusive. I do not perceive that bills of lading stand upon any different footing.”
It follows from what has been said that the stipulations stamped upon the face of the bills of lading tinder which the goods of the li-belants were shipped are to be treated as parts of such bills of lading, and binding upon the libelants, unless this ease is governed by section 2176 of the Civil Code of this state, which declares, in substance, that, with the exception of certain stipulations, not involved here, the acceptance by the shipper of a bill of lading or .written contract for carriage of his goods, containing- modifications of the general liability of the carrier,”is not binding upon the shipper unless signed by him. But the contract under consideration here was made in the state of New York, and the rule as declared by the supreme court of the United States in the case of Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, is that “con