89 Mo. App. 437 | Mo. Ct. App. | 1901
Lead Opinion
Briefly stated, the facts are, respondent shipped in bond via the Canadian Pacific Eailway Company and its connecting steamship line, four boxes of curios from Yokohama, Japan, consigned to Wilfred Schade & Co., destination port of St. Louis, Missouri, and prepaid the freight charges for the entire route. Erom Yokohama the goods were carried by steamship to Vancouver, British Columbia, and there delivered to the Canadian Pacific Eailway Company and were by it placed in a bonded car, duly sealed. Eor its own convenience, without the knowledge or consent of the plaintiff or the consignee, the Canadian Pacific Eailway Company changed the bonded destination of the goods to the port of St. Paul, Minnesota, and it and its connecting line, the Minneapolis, St. Paul & Sault St. Marie Eailway Company carried the goods to St. Paul and delivered them to the United States customhouse at that point. The United State customs offi
The appellant carried the goods to St. Louis in the same condition they were in when it received them, and offered to deliver them to the respondent on the payment by him of the advance charges of $264.31. Respondent discovered that the packages had been opened after' their shipment from Yokohama, and refused to pay the charges unless he was given opportunity to open the packages and inspect the goods to ascertain their condition. The appellant refused to permit the inspection in advance of the payment of charges, and respondent replevied the goods and took them into his possession. On opening the packages he discovered that goods of the value of $350 had been abstracted and that others had been damaged. Item thirteen of the agreed statement of facts is as follows:
Respondent bases his right to the goods on the assumption that the entry of the goods at the customhouse at St. Paul was not only unnecessary, but was in violation of the contract of
The Canadian Pacific Railway Company had in its possession one of the quadruplicate clearance certificates and was by it and by the marks and brands on the boxes apprised of the fact that the goods were shipped in bond and entitled to continuous and unbroken carriage to the port of St. Louis, but for its own convenience, as stated in the agreed statement of facts, changed the bonded destination of the goods to the port of St. Paul. After this diversion and the assessment of the customs due on the importation by the collector of customs at St. Paul, it was indispensable, to regain possession of the goods so as to continue their transit, that the import duties should be paid at St. Paul. And the contention of appellant is that as their payment was in discharge of a lien the United States had on the goods, which in any event had to be discharged before the respondent could gain possession of them, that he was not prejudiced by the payment made at St. Paul and that as appellant could only have the goods for carriage by agreeing to pay the amount of customs dues, that a lien for such advancement should be declared in its favor. In view of the fact that the appellant agreed.to pay the amount under the impression that it represented advance charges for the carriage of the goods by its predecessors and had no knowledge or information that it
Concurrence Opinion
I agree with Judge Bland. Plaintiff made a contract for the shipment of the goods’ in question in bond and under the seal of the American consul at Yokohama, for the purpose of preventing an inspection of them by customs officers until they arrived at St. Louis, the port of destination. The United States’ statutes gave him the right to ship them in that way. Both his statutory and contract rights were ignored by diverting them at St. Paul. The diversion was for the convenience of the Canadian Pacific Railway Company, merely, and is Pearce to be compelled to pay anyhow ? The duties were not properly collectible at that port, because the Federal officials had no right to ignore the Federal statutes which made them collectible in St. Louis, whither the manifest showed they were consigned “in bond,” unless they were voluntarily turned into another customhouse. Guesnard v. Railway Co., 76 Ala. 452. This put all the equities on the side of the respondent, so that no lien could equitably arise in favor of the company which paid the import duties at St. Paul, or in favor of a subsequent one which agreed to reimburse that one. If the theory of the rule allowing a lien is that the carrier acts as the owner’s agent in paying the charge, as is said in Overton on Liens, section 140, how could any company have paid at St. Paul, as the agent of Pearce, against the latter’s direction and wish? If the contract of shipment had been complied with, the damage to the goods would have been ■ avoided. A carrier paying such demands assumes the risk of their validity. It is true the owner would have had to pay the imports at St. Louis, but then he would have obtained the benefit of his contract for a through shipment without unpacking.
But I know of no law which gives a carrier the right to
Dissenting Opinion
DISSENTING OPINION.
This action is not brought against a carrier for damages on account of loss or injury to goods occurring during their transportation. It is simply a suit to obtain possession of the goods, after their arrival at the point of destination, without paying to the delivering carrier the Government dues, for the importation of the goods, which were collected at the port of St. Paul and which the defendant, the last carrier, paid as advance charges in order to obtain the
It appears this Government lien on the goods was paid, in the case at bar, by appellant and those acting for it; that
I hold that the plaintiff has no right to recover in this action, hence, I can not concur in the able opinions of my brothers, Bland and Goode.