95 F. 172 | D.S.D. | 1899
The German steamship Bt Georg arrived in Charleston on Thursday evening, July 21, 1898. laden with 4,989 hags of rice shipped from Frauen, of which 3,039 bags, freight whereon had been prepaid by shippers, were consigned to Wilmot D. Forcher, the libelant. On Friday the consignees were» notified of the arrival of lite ship, and that on Saturday she would be unladen at The South Carolina & Georgia Railroad wharf; her agents publishing in the morning newspaper on Saturday a notice, of which the following is a copy:
“Special Notices.
“Notice. Consignees of steamship St. Georg are hereby notified that she is this day discharging cargo at South Carolina and Georgia Kailway wharf, and all goods left on wharf after sunset will be stored at their risk and expense.
“Charleston Transport lane.
“Street Brothers, General Agents.”
Forcher sent Ms agent, Klinck, to attend to his consignment, and other merchants who had rice upon (he same steamship had their agents likewise at the wharf. Klinck arrived at the wharf about a quarter to 8 o’clock, and had two drays there about that time, lie had ordered other drays, hut they did not arrive until about 11 o'clock. The ship began to discharge the rice from two hatches about half past 7 o'clock, a.t first piling it indiscriminately. Subsequently, upon coinplaint made, they undertook to separate the rice belonging to the different consignees into separate piles; but the testimony leaves it in doubt whether this was effectually accomplished, many of the witnesses saying that there was considerable confusion, and that the rice of the separate consignees was not all put in the same piles. The wharf at which the steamer was discharged was one of the
In the News and Courier of Saturday morning there was published a forecast of the weather, from the official United States weather bureau, as follows:
“Washington, July 22.
“Forecast for South Carolina: On Saturday, showers and thunderstorms; warmer northeasterly winds, becoming variable.”
“United States Department of Agriculture Bureau.
“Charleston, S. C., July 22, 1898.
“Local forecast for Charleston and vicinity: Until midnight Saturday, light showers, with a probable moderate thunderstorm, followed by fair late in the day, stationary temperature; northeast to southeast winds, varying to east to south, and probably southeast to southwest winds; slightly warmer Sunday.”
The testimony shows that it was the custom of the weather bureau to distribute this printed forecast generally throughout the city, and to post the same in about 50 places in Charleston. The testimony also shows that from the 20th to the 26th of July (both dates inclusive) there was rainfall every day. The morning of July 23d was clear, but a little before 11 o’clock there came up a'thunderstorm and a heavy fall of rain, lasting a little more than an hour, nearly two inches of rain falling. It seems to have come suddenly, for Larsen, who was employed by the local agents of the steamship to supervise the unloading, had some tarpaulins, on the wharf; but, before they could be put over the piles of rice, considerable rain had fallen thereon, and the rice was also damaged by water running on the wharf. There was some testimony that the tarpaulins were defective, but this was not proved. The damage was done by the rain falling before the rice was fully covered, and by the water running along the floor of the wharf, and from the sides of the piles being uncovered. When the rain was over, it was ascertained that considerable damage had been done to the rice by water, and everything that should properly have been done to minimize the loss seems to have been done by the libelant, with the co-operation of the agents of the steamship, although the latter disclaimed any responsibility in the premises. No rice was unloaded after the rain b.egan, and the steamship was moved to another pier, where there was a shed, and the remainder of the cargo was there discharged. This libel is for the recovery of the damages caused by the rain.
Porcher’s consignment was in nine lots, under separate marks, and was receipted for as such in the bill of lading, the pertinent parts of which are as follows: “Being marked and numbered as per margin,
It has been earnestly contended on behalf of the claimants that, if Porcher had sent all of his drays to the wharf earlier in the day, the whole or greater part of his rice could have been removed before the rain. That is the most important question of fact to be determined. It is a very serious question, and the testimony is not so clear as to render a conclusion free from doubt. The rapidity with which the bags of rice were unloaded upon the wharf; the mixing up of the rice belonging to the different consignees; the necessity of weighing it; the difficulty of segregating the sacks belonging to the separate consignments.; the crowded condition of the wharf, rendering it impracticable to handle a large number of drays thereupon at the same time, — all of these conditions make it doubtful whether the rice of this libelant could have been removed before the rain commenced. That more of it could have been removed than was actually taken away is probable, if extraordinary diligence had been shown by the consignees, but the testimony' fails to show clearly that the consignee was so far lacking in ordinary prudence as to render him justly chargeable with contributory negligence. This is a case of a foreign vessel, and courts of respectable authority make a distinction between the foreign and inland trade, holding carriers in the latter to a more stringent rule as to the delivery of the goods. The exigency of this case does not require an examination or .decision whether there is any sound reason in principle for this distinction. The obligation of foreign vessels usually is simply to convey from port to port. It is generally determined by the bill of lading, which constitutes the contract between the parties; and well-known usage as to the mode of delivery may be said to enter into the contract, and become a measure of their rights and liabilities. There is also a well-known distinction between the liability of a common carrier, strictly as such, and his liability after he has devested himself of that character, though he may still have the custody of the prop
The precise question to be determined is whether, under all the circumstances of this case, the ship was so far devested of all responsibility for (he care and custody of the goods that the admitted loss must rest where it fell. The line which separates the liability of the ship from the liability of the consignee is a very narrow one, and the large number of cases cited upon both sides does not mark it with that absolute clearness which leads to an infallible conclusion. Tt will serve no useful purpose to review all of these eases, hut it is due to the industry of counsel that they should have the assurance that each case has been carefully read and considered; and, in stating my conclusion, — reached not without misgivings, — I have had the ever-present comfort that a more enlightened tribunal may correct if. if in error.
The essence of every contract of affreightment is the engagement to deliver ihe goods to the consignee in good order, and the objects of commerce would be defeated if any stipulation in the bill of lading, which constitutes the contract, was given such construction as would permit the exposure of the goods to any unnecessary hazard or obvious peril of injury or destruction. The loss caused hv a sudden storm and downpour of rain does not fall within the scope of the phrase “the act of God,” which is one of the exceptions in the bill of lading; for, to constitute the peril contemplated by that exception, it would be necessary to show that the damage was due to some inevitable necessity, which was beyond the control of human agency, and that no act of omission or of commission contributed thereto. Xor does the stipulation that the goods are at “owner’s risk” justify exposure to probable peril. These words cannot be extended by implication beyond their fair meaning and necessary import. They cannot, he read so literally as to frustrate the beneficial objects of (he transaction to which it relates, or to shield the carrier from the consequences of his own negligence, so long as the goods are within his control. 'A mere unloading does not of itself constitute delivery, if they are still subject to the risks of transportation. The phrase; that the-goods shall be “at consignee’s risk and expense after they leave the ship's deck” cannot be construed to mean that they could he landed instantly, and without regard to circumstances, at a place and time where they would he more exposed than when on the ship’s deck. These terms do not purport to relieve the ship from her previous agreement to deliver the bags of rice “marked and numbered as per margin,” and “in like apparent good order and condition,” nos absolve her from the general maritime duty to take reasonable car? of them in all situations. The obligation to deliver in good order and condition is incompatible with the broad exemption claimed under this special clause. The landing of the rice on the wharf would be a constructive delivery only, and would terminate the liability of the carrier only after reasonable opportunity had been given for its removal. If the consignee fails to appear, and neglects to remove, the master cannot abandon tbe goods to probable destruction. He is re