Majority
p. 289THE MANHATTAN OIL CO. against THE CAMDEN AND AMBOY RAILROAD. Supreme Court, First District; General Term, Dec., 1868.
Headnote
Action against Carriers.—Party Defendant.—Special Contract.Where merchandise is delivered to one of several connecting railroad companies, under a contract with such company, for its transportation to a point upon the road of another such company, the owner cannot maintain an action against the latter company founded upon the common law liability of carriers.[1]
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The remedy is only upon the contract, and the latter company are entitled to the benefit of any exceptions in the contract made with the former.
Appeal from a judgment.
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This action was "brought "by the Manhattan Oil Company (plaintiffs and appellants), against the Camden and Amboy Railroad and Transportation Company (ap
p. 292
pell ants and respondents). The cause was tried at the circuit, before Mr. Justice Clerke, in January, 1SG7. The material facts were as follows :
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The defendants were a corporation created hy the laws of the State of New Jersey, and engaged in transporting freight from Philadelphia to New York as carriers for hire.
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The plaintiffs’ agent in Cincinnati delivered to the Union Transportation and Insurance Company, a corporation of the State of Pennsylvania, also engaged in the
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“business of transporting freight as carriers for hire, a quantity of oil for transportation to New York. The receipt, or bill of lading, given by the Union Transportation & Ins. Company, was in the following form :
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■UNION LINE.
Union Transportation and Insurance Co.’s
O'
Fast Freight Line.
Via Little ILiami, Steubenville, and Pennsylvania
Railroads.
H. W. Brown, Agent, No. 27 West Third Street,
' Cincinnati, Ohio.
The Union Transportation and Insurance Company, which is Proprietor of the “ Union Line,” and which is
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sues this Bill of Lading, is a Corporation of the State of Pennsylvania, having a real capital. It owns and controls the Cars of its Line, which are
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new and of “Broad Tread,” intended to run through between the Eastern and Western cities, irrespective of change of gauge. The “ >¡c Union Line” reaches the East
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over the Pennsylvania Railroad, and is the authorized Fast Freight Line of that Road, and is worked on all the routes over which it undertakes to transport, under contracts which secure to the property entrusted to its charge, the best facilities for fast and uniform movement that the Roads over which it passes possess. D. S. Gray, Gen'l Supt. - - Columbus, Ohio.
Contents and value of packages unknown MARKS. Cincinnati, June 27th, 1804. Received from James B. Grant, the following packages, (contents unknown,) in apparent good order, viz. :
M. 0. New York. Consigned to Forty Barrels Lard Oil, Shipped June 25. Manhattan Oil Co., 16 Broadway, New York.
To be forwarded to New York within-days, (Sundays exc.epted,) subject to a forfeiture of five cents per 100 lbs. for each day over the time specified.
Marked and numbered as per margin, to be from Chichi- transported by the Union Transportation and nati to New Insurance Company, until the said goods or York. merchandise shall have reached the point
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named in this "bill of lading, on the following terms and conditions, viz: That the said Union Transportation and Insurance Co. shall not be liable for [here followed a number of excepted risks, including] damage or loss by Fire, or other casualty, while in Depots or places of transhipment; * * * * it being also agreed between the parties hereto, that the said Union Transportation and Insurance Co., and the Steamboats, Railroads or Forwarding Lines with which it connects, shall not be held accountable for any deficiency in packages, if receipted at New York, in good order. * * * And in case of loss or damage to any of the goods named in this Bill of Lading, for which the said Company, or the Railroads, Steamboats, or Fvrt warding Lines, with which they connect, may be liable for, it is agreed and understood that they shall have the benefit of any insurance effected by, or for account of, the owner of said goods. When losses occur, for which the carriers may be responsible under the Bill of Lading, the cost or value of the property at the date of shipment shall govern the settlement of the same. In witness whereof, &c.
The Union Transportation Company carried the merchandise in its own cars, in charge of its own employees, over the ordinary railroads in its customary route between Cincinnati and New York, including the railroad of the defendants to South Amboy, in the State of New Jersey, a distance of about twenty miles from New York, and there delivered the merchandise for transportation to New York upon the steamboat “Transport,” owned by the defendants, and employed by them as a part of their regular line in the carriage of freight.
p. 301—I. The receipt does not constitute an agreement between the company and the shipper'. It is only a receipt, with notice of the terms on which the company is willing to undertake the transportation of the goods (De Barre v. Livingston, 48 Barb., 511 ; Belger r. Dinsmore, 34 Blow. Pr., 421). (1.) The common law liability of a common carrier can only be abridged by express contract. (2.) Notice of a restricted liability, however distinct, though brought home to the actual knowledge of the shipper, is not sufficient—is not evidence of the shipper’s assent—nor can a special agreement be inferred therefrom (Hollister v. Nowlen, 19 Wend., 234 ; Nevins v. Bay State Co., 4 Bosw., 225 ; Rawson v. Railroad Co., 2 Abb. Pr. N. S., 220 ; Dorr New Jersey Co., 11 N. Y. [1 Kern.], 485 ; Bissell v. R. R. Co., 25 N. Y, 442 ; F. and M. Bank v. Transportation Co., 23 Vt., 186 , 205; York Co. v. Central R. R. Co., 3 Wall. U. S, 113; 10 N. H., 487 ; 10 Met., 479 ; Prentice v. Decker, 49 Barb., 21 ; Limburger v. Westcott, Id., 283; Woodruff, J., in Mercantile Ins.
The defendants received the merchandise upon their railroad and steamboats for transportation to New York, according to their usual course of business with the Union Transportation and Insurance Company, and upon the understanding and agreement with that company and other carriers who aided in the transportation of the merchandise, that the defendants should collect the entire freight upon the merchandise from Cincinnati to New York, and pay the same over to the Union Transportation and Insurance Company, to be thereafter distributed and apportioned as should be just and equitable. The defendants landed the merchandise on their pier at New York, atter working hours of the day of its arrival ; and, before notice was given to the plaintiffs, it -was destroyed by fire. The -court held at the trial that the defendants were not liable ; and gave judgment in their favor, from \\ hick, the plaintiffs appealed to the court at general term.
Edwards & Odell, for the plaintiffs, appellants.
p. 302Co. v. Chase, 1 E. D. Smith, 138). Whenever a carrier has "been released from liability by the terms of a receipt or bill of lading, the evidence has shown “ a special contract limiting his liability at time of acceptance,” or “a notice brought home to the knowledge of the owner of the goods at the time, or before the delivery of the goods, and assented to by him” (Redf. on Railways, 2 ed., 270 ; cases supra; Moriarty v. Harden’s Express, 1 Daly, 227 ; Moore v. Evans, 14 Barb., 524 ). II. There was no such agreement between the Union Ex- ’ press Co. and the plaintiffs in this case, nor can an agreement be implied. The receipt was not issued to plaintiff’s agent until June 27, two days after delivery of the goods, and probably after they had been sent forward from Cincinnati. IV. A receipt, bill of lading, or notice, is construed strictly against the" carrier, and liberally in favor of the shipper; and exceptions are to be taken most strongly against the party for whose benefit they are introduced (Curtis, J., in Avery v. Merrill, 2 Curt., 11 ). The language
III. The only agreement made by the plaintiffs for the carriage of the oil was made with the Union Company. To that the defendants are not parties. It was not made by their agent, nor by their authority, nor for their benefit, except as hereafter stated ; nor does the case show that it came to their possession, or that they had knowledge of it, at any time prior to the commencement of this suit. The Union Company was not the defendant’s agent in procuring this oil for transportation, or in contracting with the plaintiffs in reference to it. It was the plaintiffs’ agent, entrusted with the plaintiffs’ goods, and undertaking to deliver those goods safely at Hew York (New Jersey Navigation Co. v. Merchant’s Bank, 6 How. U S., 344; Stoddard v. Long Island R. R. Co., 5 Sandf., 180 ). The Union Company might have bound the plaintiffs by a special contract with defendants ; but no such contract was made. The bill of lading was only intended to define the nature, the terms, and the liabilities of the Union Company" s agency.
p. 303must be taken most strongly against the defendants. The instrument was drawn up with care, in language selected by themselves, and the restrictions were for their benefit, The owners of packages sent by express rarely have an opportunity to examine the terms of the receipt presented to them (Sawyer, J., in Hooper v. Wells, 5 Am. Law Reg. N. S., 23, citing Ch. J. Gibson, in Atwood v. Trans. Co., 9 Watts, 88 ). V. These general principles aid the construction of this bill. (1.) A carrier may contract to transport goods beyond the terminus of his own route. (2.) He may stipulate for a restricted liability for himself, and leave the common law liability of connecting carriers unaffected. (3.) Or he may provide that the qualified liability shall extend to the connecting carriers. (4.) Or that it shall extend to some, fully, or to all, partially, etc. VII. If the bill of lading had provided that its several provisions should extend to any party who might undertake the carriage of the oil over any portion of the route, the only question would be—Is the loss within any of the exceptions % Or, if it had referred to the Union Company alone, and been silent as to other carriers, it would have afforded a plausible argument in favor of
VI. This bill of lading contains whatever agreement was made by the plaintiffs. It expresses the conditions limiting the liability of the Union Company. It assumes the necessity of the use of “ connecting lines,” and specifies to what extent the general liability of such “connecting lines” shall be qualified. (1.) All the conditions and exemptions are made applicable to the Union Company. (2.) Those that relate to loss or damage in transit, are confined to the Union Company in express terms. (3.) A receipt for the oil, in “good order,” shall discharge the “connecting lines” from liability for “deficiency in packages.” If liable for loss, they “ shall have the benefit of any insurance” upon the property destroyed. No further stipulation in their behalf was asked for by the Union Company, or assented to by the plaintiffs.
p. 304was of the Union Company only, and intended to be limited to it. It was an Express Company—running over various routes,—owning its own cars, but wholly dependent for motive power upon the companies over whose roads it operated. Its. cars could move only as and when those carriers chose to move them. Its freight was deposited in places which. those carriers'provided or selected. The time consumed-—the means employed—the dangers incurred in the use of those means—in the transit of freight, were alike beyond its regulation or control. Collision and fire were perils to which it was apt to be exposed by the mismanagement or neglect of other parties. It is not strange, therefore, that the Union Company should contract for its own exemption from liability as Insurers against casualties, which, though not inevitable, it could not even attempt to prevent. And it is significant, that the exemption from loss by fire is -limited to places where the merchandise would be least under the control of the employees of the Union Company, and most exposed to danger. I. The bill of lading, issued by the Union Transportation and Insurance Company constituted a special contract,
these defendants. But the terms of the agreement are explicit. The Union Company shall not he liable for leakage, delay, collision or lire. The defendants shall not, in a certain event, be liable for deficiency, and, in case of loss, shall be entitled to insurance held by plaintiffs. Why was special provision made for the defendants’ indemnity in these two particulars, if all the stipulations of the agreement were intended to’ be for their benefit and protection % Exprés sio unius, <£c. “ Where parties have entered into written agreements with express stipulations, the presumption is, that having expressed some, they have expressed all the conditions by which they intend to be bound under that instrument” (Broom's Maxims, 582, marg.).
Charles F. Sanford,.for the defendants, respondents.
p. 305by the terms and conditions of which both parties thereto were bound in law. (1.) A carrier may, "by special agreement, secure exemption from liability not arising from his own fraud, or culpable negligence (Harris v. Packwood, 3 Taunt., 264; N. J. Steam Nav. Co. v. Merchant’s Bank, 6 How. U. S., 382; Parsons v. Monteath, 13 Barb., 353 ; Moore v. Evans, 14 Barb., 524 ; Dorr v. N. J. Steam Navigation Co., 1 Kern., 485 ; Wells v. Steam Navigation Co., 4 Seld., 375; Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y., 173 ; Wells v. N. Y. Central R. R. Co., 24 Id., 181 ; Bissell v. N. Y. Central R. R. Co., 25 Id., 442; Peninsular & Oriental Steam Navigation Co. v. Shand, 11 Jur., 771). (2.) In all the cases where the questions involved have arisen upon a bill of lading, issued by the carrier, and accepted by the shipper, concurrently with the delivery of the goods, such bill of lading has been held to constitute a special contract between carrier and shipper. See Great N. R. Co. v. Morville (21 L. J. R., Q. B., 319); York, &c. R. Co. v. Crisp (14 C. B. R., 527). The stipulation of the parties, and the findings of the court, recognize and establish the fad of an “ agreement contained in said bill of lading.’’ II. The Union Transportation and Insurance Company undertook the transportation of the plaintiffs’ merchandise from the place of shipment to the place where consigned. (1.) The terms of the contract are explicit; and it is admitted that the carrier undertook the tr.msportatation of the plaintiffs’ merchandise from Cincinnati to New York. (2.) The contract contains a charge for the carriage of the merchandise to New Yook. And wherever a carrier agrees to a rate of charge (whether payable at the beginning or end of the journey), for which the goods are to be transported to a particular place, he is, in law, held as undertaking the carriage of the goods to, and as responsible (subject to the restriction contained in the contract), for their safe delivery at, the place so designated (Weed v. Saratoga and Schenectady R. Co., 19 Wend., 534 ; Merchant’s Bank v. Champlain Tr. Co., 23 Vt., 186 , 209 ; Muschamp v. Lancashire and
p. 306Yorkshire R. C., 8 M. & W, 421; Wilcox v. Parmelee, 3 Sandf., 610 ; Malloy, v. Burrett, 1 E. D. Smith, 248 ; Hart v. Rensselaer & Saratoga R. R. Co., 8 N. Y. [4 Seld.], 37; Krender v. Wilcott, 1 Hilt., 223 ; Dillon v. N. Y. & Erie R. R. Co., Id., 231; Tallent v. South Staffordshire R. Co., 8 Exch., 341; Collins v. Bristol & Exeter R. Co., 25 L. J. R. [Exch.], 185; Ex. Chamb. 26 L. J. R. [Exch.], 103 ; 1 H. & N., 517; House of Lords, 29. L. J. R. [Exch.], 41; 7 House of Lords Cases, 194; Welby v. West Cornwall R.. Co., 27 L. J. R. [Exch.], 181 ; Mylton v. Midland R. Co.,. 28 L. J. R. [Exch.] 385; 4 H. & N., 615 ; Coxon v. Great Western R. Co., 29 L. J. R. [Exch.], 165 ; 5 H. & N., 274). The bill of lading being a through contract, the defendants, equally with the Union Transportation and Insurance Company, are entitled to all the exceptions and immunities which the contract contains (Scotthorn v. South Staffordshire Railway Company, 8 Exch., 341 ; Muschamp v. Lancaster R. R. Co., 8 " M. & W., 421; Watson -y. Ambergate R. R. Co., 15 Jur.,, 448 ; Hart v. Rensselaer and Saratoga R. R. Co., 4 Seld., 37; Mallory ■y. Burrett,' 1 E. D. Smith, 234; ’ Collins -y. Bristol and Exeter Railway Company, 25 L. J. R. [Exch.], 185, and cases supra).
—The oil, which is the subject-matter of the action, was delivered to the Union Transportation and Insurance Company, at Cincinnati, under a contract between it and the plaintiffs’ agent to receive said oil, and carry the same to the city of Hew York for certain hire and reward in such contract specified.
It was provided in and by said contract that the said Union Transportation and Insurance Company should not be liable for damage or loss by fire or other casualty while said property was in depots or places of transhipment.
The said oil was carried on the cars of said Union
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Company over, the railroad between Cincinnati and Philadelphia, at which place it was delivered to the defendant to be carried to, and delivered at the city of New York. It was carried- over the defendants’. railroad to South Amboy, and there put on board a steamboat owned by the defendants, in the usual course of business, and by such vessel carried to New York, and stored in the freight house of said defendants, on Sunday evening, July 10th, and between that and the morning of the 11th of the same month, the said freight house and the said oil were destroyed by fire, without any negligence on the part of the defendants.
No notice of the arrival of said property was given to the plaintiff before the destruction thereof by said fire.
If this action was against the Union Company, it is quite clear that no recovery could be had "against it, as this property was, within the exception of the contract, destroyed while in a depot awaiting delivery to the owner. The liability of the carrier was not terminated at the time of the fire. No notice of the arrival of the property had been given ; and until that was done the responsibility of the carrier continued.
This being so, the question is whether the defendant was liable for the loss ’ of the property as carrier, wholly irrespective of the contract with the Union Company. The contract with the Union Company provided for the transportation of the oil from Cincinnati to New . York, and until the expiration of a reasonable time for its removal after notice to the owner of its arrival. The defendant is not liable on that contract. ' It was not a party to it.
Upon what principle then, is it liable ?
It is said that being a common carrier, and receiving the property as such, to be carried, the law authorizes the owner to elect to pursue it, instead of the company with which the .contract was made. . Such a proposition should rest upon the clearest principles or the highest authority. No case has been cited, nor can one be found, establishing any such proposition.
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The defendant received the goods from the Union Company to be carried, under its contract with the owner, and it was entitled to the benefit of all stipulations in such contract affecting its liability.
As the Union Company would not, on the facts proved, be liable for the property, neither would the defendant.
The judgment must therefore be affirmed.
Judgment affirmed.
Footnotes
- * Present, Ingraham, P. J., and Barnard and Mdllin, JJ.