Kelly v. Lehigh Valley Coal Co.

The plaintiff was owner of the canal boat John Snyder, Jr., and in May, 1877, one John Hennesey was her captain. The defendant is a foreign corporation, organized under the laws of Pennsylvania, engaged in mining coal, which is shipped over the Lehigh Valley Railroad to Perth Amboy in the State of New Jersey, passing at that point from the " cars through "shoots' into boats for water transportation. The former company employs the latter to carry and deliver the coal for a stipulated price per ton. The deliveries of the coal upon the boats are regulated in kind and amount by orders issued by the defendant from its office in New York, addressed to an agent of the railroad at Perth Amboy, naming the boat, the consignee, the number of tons of coal,- the freight price per ton, the place of destination, also specifying that the captain is to attend the guy, and directing the boat to be so loaded. In the case at bar an order substantially in the above terms, dated May 16th, 1877, was given to the captain upon his application. It was addressed to E. R. Bulkley, Perth Amboy, ■ who was the shipping agent of the railroad company, and not in the employ of the clerendant. By its terms the boat was to take two hundred and fifty tons of coal consigned to parties in Sing Sing, N. Y. On the day following the plaintiff stated to the person in charge of defendant’s office, that the boat could not safely cany the cargo named, and that if put on, it would sink her. He was told in reply that the boat would be held responsible to carry that load, and he rejoined, “ I \vill stop it if I possibly can.” He went ta Perth Amboy

The original complaint is founded upon a contract ap^ pearing to have been made in the State of New Jersey. The amendment allowed upon the trial incorporated in it the one made with the defendant in the city of New York. The judgment could not be sustained upon the former, because the Marine Court would have been without jurisdiction. It does not clearly appear from the record whether or not the sinking of the boat was within this State. The witnesses locate the place about nine miles this side of Perth Amboy, and probably in the sound between Staten Island and New Jersey, but upon which side of the filum aquce is not shown. That boundary of the State of New York is the centre of the waters between those territories. (The People, &c., v. The Central Railroad Co. of New Jersey, 42 N. Y. 283 .) Ic is therefore impossible to determine in which jurisdiction the disaster happened. If the action should be deemed one ex delicto this uncertainty would be embarrassing, but I am' of opinion, that it is upon contract. (Conaughty v. Nich ols, 42 N. Y. 83 ; Harris Ex., &c., v. Todd, Jr., 16 Hun, 248 .) The jurisdiction of the Marine Court can therefore be maintained only upon the theory that the suit is brought upon the contract made with the defendant iii the city -of New

First. Whether the defendant is chargeable with the acts, or bound by the declarations of Bulkley, to whom its order was addressed.

Second. Whether the participation of the captain in the loading of the boat does not relieve the defendant from all liability.

I do not think the address of the order to Bulkley suffi- . cient to make him so far represent the defendant as to bind it by his acts and statements testified to by the plaintiff. He is shown by the defense to have been the shipping agent of the railway company, qyer whose road the coal mined by the defendant was carried to Perth Amboy under a freighting contract, which included placing the coal on boats; it also appears that he never was in the defendant’s employ, and in no wise under its control. It would be impossible to conclude from such facts that he had any authority to modify the order issued -by the defendant, or in any way to change it beyond the power therein expressed.

In this view, the case briefly stated shows a contract made by the captain of the boat to carry two hundred and fifty tons of coal from Perth Amboy to Sing Sing, with the knowledge on his part, and also the owner's, that the boat would sink under a load of from two hundred and thirty to two hundred and forty-two tons. The terms of this agreement were known to the plaintiff before' the loading began, and having been plainly advised by the defendant’s agent of its intention to hold the boat to the charter, it rested with him either to accept or decline the freight.' He was at Perth Amboy subsequent to this notification, and before any coal had been placed on board. The boat was under his control and could easily have been moved from alongside the railway dock. The cap

I am of opinion that the judgment of the court below should be reversed and a new trial ordered, with costs to abide the event.

Larremore, J., concurred.

Judgment reversed and new trial ordered, with costs to abide events.