Lough v. Outerbridge — 22 N.Y.S. 976

Majority

p. 976

LOUGH et al. v. OUTERBRIDGE et al.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Headnote

Cabribbs op Goods—Discrimination.

A common earner of freight on the high seas has a right to provide at" certain times a reduced rate, on condition that all of the consignor's-freight during such times he sent by such carrier’s line, and, the same terms being offered to ail shippers, none have a right to complain.

Appeal from special term, New York county.

Action by Ernest St. George Lough and Robert H. Burrows-against A. Emilus Outerbridge, Adolphus J. Outerbridge, and the-Quebec Steamship Company to restrain defendants from charging plaintiffs higher rates for carrying goods than were charged to-other shippers. From a judgment for defendants, dismissing the complaint, plaintiffs appeal.

Affirmed.

The plaintiffs are partners, under the firm name of G. F. Lough & Co., engaged in business at the city of New York, as export commission merchants-shipping goods to the Windward islands. The individual defendants are engaged in "business in the city of New York "under the firm name of A. E. Outer-bridge & Co., and are the agents of the Quebec Steamship Company, a Canadian" corporation which now is, and for 19 years last past has been, engaged in carrying passengers, the mails, and merchandise between the city of New York and the Windward islands. It has employed five or six iron steamers of the highest class in its business, and during the year 1892 a vessel left New York once in 10 days. About six weeks is required to make a trip from New York to the islands and return. Vessels sailed from New York on days advertised, without reference to the quantity of cargo shipped. For seven years-prior to the commencement of this action the El Callao-, a British steamer, has been engaged in carrying passengers and freight between New York and Cuidad Bolivar, a port in Venezuela. Early in 1892 this steamer began carrying freight from New York to Barbadoes, at which port she stopped on her-regular trips to and from Cuidad Bolivar. She sailed from New York at intervals of five or six weeks, and her freight to Cuidad Bolivar was the principal feature of her business, but such space as was not required for goods-shipped to the latter port she filled with merchandise for Barbadoes and other islands on her route. On two occasions when the El Callao- was loading at New York for Barbadoes, the defendants reduced the regular rates of" freight from New York to Barbadoes from 40 to 25 cents per barrel, to such shippers as sent all their freight during that week by the defendant’s line. In. February and June, 1892, when the El Callao was loading for Barbadoes, the plaintiffs demanded that the defendants should carry, by one of its steamers, freight from New York to Barbadoes for 25 cents per barrel. This the defendants refused to do unless the plaintiffs would agree to ship all their freight sent during the week of the sailing of defendants’ steamer by its line. The-defendants have uniformly charged 40 cents per barrel to all shippers, upon all occasions, except when a steamer of the defendants and the El Callao left New York during the same week. Forty cents per barrel is found to be a-fair and just rate, and 25 cents per barrel is not profitable for the carrier.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT,. JJ.

Evarts, Choate & Beaman, for appellants.

Butler, Stillman & Hubbard, for respondents.

Prior to December, 1891, the established rate of freight from Hew York to Barbadoes was 50 cents per barrel, but in that month the defendants reduced the charge to 40 cents, which remained the regular rate up to the time when this action was begun. The uncontradicted evidence is that 40 cents is a barely paying rate, and it is found as a fact that this rate “was fair and just, and afforded a bare subsistence to vessels carrying at such rate.” It was also testified on the trial, and was not contradicted, “that twenty-five cents is not a profitable rate, because we pay thirteen cents a barrel for the privilege of putting it ashore at Barbadoes, and four cents a barrel for putting it on board here.” The court found that “the rate of twenty-five cents per barrel was not profitable.” In February and in June, 1892, the El Callao made the rate 30 cents per barrel. On Monday, February 29, 1892, the Cosmopolitan, one of defendant’s steamers, sailed from Hew York for Barbadoes. During the week before, the El Callao was taking freight for the same place. The plaintiffs were the shipping agents of James H. Innis, and one of them testified that on the 25th of February he asked the defendants to carry, by the Cosmopolitan, 3,500 barrels to Barbadoes for 25 cents. This the defendants refused to do unless the plaintiffs would agree not to ship by the El Callao, which were the terms given to all other shippers. “L. Burrows, [one of the plaintiffs,] said that James H. Innis is the only person we are shipping goods to Barbadoes to by the El Callao, in other words, he takes up the whole space; he is responsible alone, and he has nobody else with him.” Thus it appears that the plaintiffs furnished all the freight to the El Callao for which it had space at 30 cents per barrel, and demanded that the defendants should carry the remainder of their freight, by the Cosmopolitan, at 25 cents per barrel. On Saturday, June 4," 1892, the Trinidad, one of the defendants’ steamers sailed from Hew York for Barbadoes, and during the week previous the El Callao was taking freight for the same place. William P. Lough, one of the plaintiffs, testified:

“Question. Do you know whether you took all the room that there was in the El Callao available, for Barbadoes, in February and June? Answer. I believe we did. It was a usual thing for us to do,—that we filled up the available space. The rates that we were paying on the El Callao for Barbadoes were thirty cents per dry barrel. That was so in February as well as in June.”

After exhausting the capacity of the El Callao the plaintiffs demanded that the defendants should carry 1,750 barrels to Barbadoes for 25 cents, which they refused to do, unless the plaintiffs would ship all their freight by the defendants’ line. The plaintiffs’ evidence is that they furnished the El Callao, in February and in June, with all the freight it could carry to the Barbadoes at 30 cents per barrel,—its rate,—and then insisted that the defendants should take the remainder of their merchandise at 25 cents per barrel. The evidence produced by the plaintiffs shows, and the fact is undisputed, that the defendants carried for 25 cents per barrel only in case the consignor would send all of his freight by their

p. 978

line, and the plaintiffs testify that the same terms were offered to them. On such a state of facts there is no foundation for the position that the defendants discriminated against the plaintiffs ■or against any shippers, as the same terms were offered plaintiffs ■as were given to all. A common carrier has the right to charge ■different sums for the transportation of goods on different occasions. 'The defendants had the right to carry goods at 25 cents per barrel, or for any less sum, and to establish reasonable conditions upon which they will carry for that price. The condition that all of the consignor’s freight which was shipped during the week of loading should be sent by defendants’ line if the 25 cent rate was given was not an unreasonable one. The defendant corporation is a common carrier on the high seas, open to all, and it has never acquired any rights by the exercise of the power of eminent domain, and its duties are simply those imposed by the rules of the common law. It had the right to compete with the El Callao for the carriage of freight, and offer such prices as it saw flt, and, so long as it offered the same terms to all shippers, none have a legal cause for complaint.

The judgment should be affirmed, with costs. All concur.