McAndrew v. Whitlock — 32 N.Y. Super. Ct. 623

Majority

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WILLIAM P. McANDREW and Others, Plaintiffs and Respondents, v. WILLIAM WHITLOCK, Jr., Defendant and Appellant.

[Decided December 31, 1870.]

Headnote

A referee is required to make such findings of fact as are necessary to sustain his conclusions of law. He is not required to find other facts which are merely of a negative character.

The duty and obligation of a common carrier ceases with a proper delivery to the consignee.

In case of a carriage by land, such delivery, except when controlled by contract or usage, must be to the consignee in person, or at his residence or place of business. In case of carriage by water, usage has rendered landing upon a wharf or deposit in a storehouse, after notice to the consignee, a sufficient delivery.

The notice must be such as to afford the consignee an opportunity to remove the goods.

Where a carrier by water lands licorice upon a wharf, on a day unsuitable for landing or exposing such a perishable article, without giving seasonable notice to the consignee, the carrier is responsible for an injury by the elements.

Before Monell, McCunn, and Jones, JJ.

Appeal from a judgment.

The action was against the defendant as owner of the ship Carolus Magnus, to recover for damage to a portion of a quantity of licorice brought by the ship from Liverpool to Hew York in the summer of 1860.

The complaint alleged that the injury was caused by discharging the goods upon a dock, partly in a rain, when they could not, owing to the absence of a custom-house weighing-master, be removed, and were left exposed upon the dock, without precaution as to covering or protecting.

The answer put these allegations in issue, and then alleged a proper, suitable, and sufficient delivery.

The action was tried by a referee, who found the following facts:

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That in June, 1860, the plaintiffs shipped on board the ship or vessel belonging to the defendant, called the Carolus Magnus, then lying in the port of Liverpool and bound for New York, three hundred and eighty-one cases of licorice, in good order and condition, containing sixty-nine thousand two hundred and ninety-seven pounds net weight of licorice, the property of the plaintiffs, and the said master, on such shipment, signed and delivered to the shippers a bill of lading therefor, by which it was stipulated that the said licorice should be delivered in the like good order and condition at the port of New York (dangers of the seas excepted), unto the order of the shippers or assigns, he or they paying freight for the said goods, with five per cent, primage and average accustomed.

That the licorice was consigned by the plaintiffs to James C. McAndrew, who was their agent in the city of New York, and the bill of lading, duly indorsed in blank, was transmitted to the consignee, who was ready, on the arrival of the ship at the port of New York, to receive the goods and pay therefor the freight and primage.

That the ship, having the licorice on board, arrived at New York on the 25th day of August, 1860, and soon thereafter, and before the second day of September, the agent and consignee of the plaintiffs had notice of such arrival of the ship with the licorice on board; the agent paid the duties upon one hundred and eighty-one cases, parcel of the licorice, on the first day of September, 1860, and entered the remaining two hundred cases for warehousing, and received permission to cart the same in carts provided by himself, and a direction to place them in the United States Bonded Warehouses, Nos. 6, 8, and 10 Bridge street, in the city of New York, and duly delivered on board the ship a permit from the Collector of the Port of New York for the discharge of the goods from the vessel.

That on the 2d day of September, 1860, and on various days between the 2d of September and the 19th of the same month, the consignee, on the behalf of the plaintiffs, applied to the agents of the defendant on board the ship, to learn when the defendant

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or Ms agents wouM be in readiness to land the licorice, but received no other or further information than that the licorice was in the lower hold of the ship and would not be put out until they got ready.

That the licorice was, in fact, near the bottom of the ship, other goods were on board which must be discharged before the licorice was reached, and no want of diligence on the part of the defendant in not landing the licorice earlier than the 20th day of September was proved.

That when the custom-house permit was delivered, the agent of the defendant in charge of and on board the ship was expressly notified by the agent of the consignee, on behalf of the plaintiffs, that the licorice was perishable, and was requested not to put it out in rainy weather, for the reason that, if he did, the plaintiffs could not take care of it, it had to be carted so far, and he was requested to be very particular, and let the day be clear, if possible, and such agent of the defendant promised to do so; on the 19th of September, the plaintiffs, by their agent, requested the defendant through Ms agent in charge and on board of the vessel to land the licorice on that day, but he declined; the- plaintiffs-then further requested that if the next day should not be fine he would not land the licorice, and the agent of the defendant then-informed the plaintiffs’ agent that, if the weather was fine on the 20th, he would discharge the licorice from the ship on that day ; on the 20th day of September (1860), in the morning it rained and continued to rain until and at 9 o’clock in the forenoon, with thunder and lightning at 4, 7:50, and 8 o’clock; at 10 o’clock it was clear and continued clear for one hour, when it became cloudy (light clouds for two hours and denser clouds thereafter), and so continued till 2 o’clock and 37 minutes p.m., when it rained; at 3 p.m. it was still cloudy, but without rain. At 4 o’clock 25-minutes p.m. the rain again commenced, with thunder and lightning, and continued with increasing violence during the rest of the day and ensmng night.

That, without further notice to the plaintiffs or their agent and consignee, the defendant, at or about 9 o’clock in the morning of

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that day (20th), commenced landing the licorice in good order upon the wharf, and continued landing the same until about a quarter before twelve o’clock (noon), at which time verbal information from the defendant that the landing was in progress was given to the clerk of the consignee, and at 12 o’clock (noon) only about forty cases remained on the ship to be landed, all of which residue was landed in good order between 1 and 2 o’clock of that day on the wharf; by the law of the United States the licorice could not be removed from the landing-place until it was weighed by a weigher, for thafpurpose duly appointed under the United States laws; such weigher arrived at the said landing-place and began the weighing at about half-past two o’clock p.m. of that day, and continued to weigh the cases during the residue of the afternoon, and finishing such weighing at 5 o’clock p.m. ; the general usage in the port of New York in respect to the mode of delivery of goods by carriers in ships bringing goods from foreign ports is, that when the ship arrives the carrier advertises for permits, with notice that goods not “ permitted” will be sent to the public store, and on receiving the permits he proceeds to land the goods; the consignees generally send their carts, and cart them away.

That immediately upon receipt of information by the clerk of the consignee that the landing of the said licorice had begun as above stated, the consignee employed a large number of carts, and used extraordinary diligence to remove the licorice to the United States bonded warehouses, but notwithstanding such' diligence the same was wet and injured by the rain, and thereby depreciated in value, with the exception of fifty cases which arrived at the warehouses at about 3 p.m., without having been wet or injured by the rain.

That the warehouses were at such distance from the vessel that the time required for a trip by the carts to the same and back to the wharf was about one hour and a half.

That the United States warehouses closed at six o’clock p.m., and one hundred and seventy cases of the licorice remained on the wharf during the night, neither party protecting the same from injury; the damages sustained by the plaintiffs by the de

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preciation in value of the licorice by the rain, were on the 21st day of September, 1860, two thousand and seventy-eight dollars and ninety-one cents, and the interest thereon from that day, which to the date of this report is six hundred and ninety-one dollars and twenty-three cents, amounting together to two thousand seven hundred and seventy dollars and fourteen cents.

That the defendant was guilty of negligence and breach of his obligation and duty as the carrier of the goods, in landing the licorice on the dock, with knowledge of its perishable character, on a day unsuitable to the landing and transportation of such goods, without reasonable notice to the consignee sufficient to enable him to cause the same to be weighed, transported, and protected against injury by the weather.

That no negligence was imputable to the plaintiffs, or the consignee, in respect thereto.

From these facts the referee found and determined that the defendant was liable to the plaintiffs for the damages so sustained, and accordingly ordered judgment in favor of the plaintiffs and against the defendant for the sum of two thousand seven hundred and seventy dollars and fourteen cents, and their costs.

The defendants requested the referee to find the following facts, in addition to those stated and found in his report, viz.

1. That at 9 o’clock, on the 20th of September, 1860, the master of the vessel consulted the barometer, and found it to be rising.

2. That at 12 m. the master again consulted the barometer, and found it to be still rising.

3. That the rain at 2:37 o’clock p.m. was merely a slight shower, lasting about five minutes, and doing no damage to the licorice.

4. That the landing of the licorice was made under the superintendence of a United States inspector, stationed on the ship by the custom-house authorities.

5. That the licorice, as it was landed, was placed by itself on the wharf.

6. That no steps were taken by the consignee’s agent to protect or provide covering for the licorice from the rain, either on the wharf or during the transit to the warehouses.

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The referee refused to find upon any of said requests otherwise than as he had already found. The defendants excepted to several of the findings of fact and to conclusions of law of the referee, and to his refusal to find the additional facts as requested.

There was also ah exception to the exclusion of the following questions:

Q. Is there any general usage regulating the time with respect to the landing of goods on the wharf, when the responsibility of the ship or its owner ceases in regard to the goods, or their care or custody %

Q. Does the usage to which you have already referred regulate the time with respect to the landing of the goods on the wharf, when the responsibility of the ship or its owners ceases, in regard to the goods, or their care or custody ?

Q. Is there any settled usage in the port of Hew York as to what constitutes a delivery of goods by vessels bringing them from foreign ports ?

The last question was objected to, and the referee sustained the objection, at the same time stating that he would allow proof of the actual usage of carriers as a question of fact, but would not allow the question in its present form.

The defendant appealed from the judgment.

Mr. William H. Scott for appellant.

It is submitted that the defendant has made out affirmatively a good delivery of the licorice, terminating his liability as carrier from the moment of the landing on the wha/rf according to the well-settled law regulating the mode of the delivery of their cargoes by ships from foreign ports.

In regard to goods carried under bills of lading, the determination of the “period at which the responsibility of the master and owner will ceasef usually depends upon the “ manner of delivering the goods” as regulated bylaw or settled usage (Abbott on Shipping, 378; 3 Kent Com., 215, 9th ed., 291).

“ The general rule is, that delivery at the wharf (when there

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are no special directions to the contrary) discharges the master ” (3 Kent, 215).

The same learned authority, however, lays it down as a qualification of this rule, that there must be “ a delivery at the wharf to some person authorized to receive the goods, or due previous notice must have been given to the consignee of the time and place of delivery ” (id.).

But even under this qualification of the general rule, it was only necessary that the notice should be of the “ time and place ” of delivery.

No case can be cited, even among the earlier authorities, requiring notice to be given of the fact of the delivery on the wharf by ships from foreign ports, in addition to the notice of time andplace. But independent of the question of the receipt or acceptance of the licorice by the plaintiffs’ agent on the wharf, and whether the case be governed by the old rule in regard to notice or the relaxation of the rule as established by the later and more judicious decisions, it is insisted that according to the whole current of the authorities, both earlier and later, the defendant, upon the facts found and stated by the learned referee himself, has made out affirmatively a good delivery of the licorice under the bill of lading, ending his responsibility for the licorice, and placing it at the exclusive risTs of the plaintiffs, several hours before the occurrence of the storm by which the damage was occasioned (Hyde v. Trent Navigation Company, 5 Term, 389, 394, 395, 396, 399; Cope v. Cordova, 1 Rawle, 203 ; Angell on Carriers, § 310, et seq. ; Story on Bailments, 534; 1 Parsons’ Maritime Law, 152; Richardson v. Goddard, 23 How. (U. S.) 28; The Grafton, Olcott, 43; Gibson v. Culver, 17 Wend., 311 ; Chickering v. Fowler, 4 Pick., 371 ; Kohn v. Packard, 3 Louisiana, 224; Ely v. The New Haven Steamboat Company, 53 Barb., 207 ).

The defendant is not liable under his contract as carrier for the damage done to the licorice by the rain storm of the afternoon and night of the 20th September.

The discharge of the licorice was completed by half-past one in the afternoon.

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The rain did- not commence .until twenty-five minutes past four in the afternoon.

Under the law, even if the defendant’s responsibility did not terminate as to each case of the licorice, pari passu, with the landing, and even if, as to the whole of the licorice, it did not terminate with its delivery on the wharf to the custom-house officers at the ship and on the wharf, the liability as to all the licorice -certainly terminated with the delivery of the whole on the wharf at p.m.

But it is insisted that the responsibility of the defendant terminated, as to each case, with the delivery of each case on the wharf, and if not eo instanti with the landing, nevertheless with its possession by the plaintiffs’ agents on the wharf, at or about 12 m. (The Grafton, Olcott, 51).

But, independent of the delivery to the plaintiffs’ agent, there was a clear delivery of the whole of the licorice .to the United States custom-house officers on the wharf, “ and with its receipt by them * * * * the liability of the defendant terminated.”

In regard to ships from foreign ports it has been settled ever . since the case of Hyde v. Trent navigation Company (5 Term., 394), that “ the liability of ship carriers is at an end when the goods are landed at the usual wharf ” (per Grose, J., page 399; Cope v. Cordova, 1 Rawle, 203 ).

Mr. Augustus F. Smith for respondents.

The general rule is, that the carrier must deliver to the consignee personally (Fisher v. Newton, 1 Denio, 45 , 47).

But a usage prevails in respect to carriage by water, that the delivery may be made on the wharf.

The reason of the usage is apparent. The duty of the carrier is bounded by the ability of the vehicle.

The reason of the usage exists, and the usage prevails to the same extent, and as well in the internal and coasting trade as in trade with Europe or other parts of the world.

The rule is stated in the following authorities: Story on Bail

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ments, § 545; Price v. Powells, 3 Com., 322; Ostrander v. Brown, 15 J. R., 39, 42; Fisk v. Newton, 1 Denio, 45 , 47; Angell on Carriers, § 310; 2 Kent, 605 (margin) and notes; Barclay v. Clyde, 2 E. D. Smith, 95; Chickering v. Fowler, 4 Pick. 371 .

The defendant failed to prove any usage in Hew York at variance with the established rule.

The case, Cope v. Cordova ( 1 Rawle, 203 ), went upon a special usage in Philadelphia, and even in that case the court leave for future decision the case of the landing of perishable articles at improper times (Angell on Carriers, § 311; Gibson v. Culver, 17 Wend., 305 .)

To discharge the carrier, however, from all further liability, the following are necessary:

1. He must give reasonable notice to the consignee.

2. A reasonable time must elapse after notice to remove the goods.

3. As a corollary from these two, the discharge must be at a reasonable time.

Story says:

“ But it is of the very essence of the rule, that due and reasonable notice should be given to the consignee before or at the time of landing, and that he should have a fair opportunity of providing suitable means to take care of the goods, and to carry them away” (Story on Bailments, § 545).

And in Price v. Powell:

“And, after notice to the consignee, the carrier still continues liable until the consignee has had a reasonable time to remove the goods ” ( 3 Cow., 322 ).

It is also clear, that under no circumstances can the carrier place the goods upon the wharf and abandon them to thieves or the elements.

If the consignee be dead, or cannot be found, or even if he neglect or refuse to talce the goods, the carrier must store them, and, until he does, he is responsible for their safety (Ostrander v. Brown, 15 J. R., 39, 42; Fisk v. Newton, 1 Denio, 45 , 47; Story on Bailments, § 545; 2 Kent, 605, margin).

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Doubtless the freight is earned when the goods are tendered, but the consignee cannot then abandon them.

No reasonable notice was given, and as every effort was made to remove the licorice, the reasonable time required by the law had not elapsed when the damage occurred, whether at the wharf or upon the carts, and therefore the ship remained liable.

For all that remained upon the wharf, and all that was injured at the wharf, the ship is liable, for it still remained in the ship’s custody. It should have been protected by the ship.

By the Court:

The very full, comprehensive, and intelligent finding by the referee, of the facts established by the evidence, has rendered it easy in the application of the principles of law which must govern the case.

There was but little dispute at the trial, and most of the facts found were not contested. Such as were disputed had enough evidence to support them, and we cannot, upon this appeal, disturb the referee’s conclusions.

The defendant, on the trial, requested the referee to find certain other and additional facts, which had been established by uncontradicted evidence, and which it was claimed exonerated from liability. But the referee refused to make such additional findings, not because they had not been proven, but because, in his judgment, they were immaterial. The rule on this subject is, that a referee is required to make such findings of fact as are necessary to sustain his conclusions of law. He is not required to find other facts which are merely of a negative character (Nelson v. Ingersoll, 27 How. Pr. R., 1).

I had occasion recently, in the case of Mierson v. Hope (decided December 3, 1870), to examine at some length into the duties and obligations of common carriers both upon land and by water. The result of such examination and of the authorities, most of which have been cited by the respondent’s counsel in this case, was, that such duty and obligation ceased only with a proper delivery to

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the consignee. In the case of carriage by land, such delivery, except where otherwise controlled by contract or usage, and except, perhaps, in the single instance of carriage by railroad companies, must be to the consignee in person, or at his residence or place of business. In respect, however, to carriage by water, custom or common usage has relieved the carrier from the duty of actual delivery, and a landing upon a wharf, or a deposit in a storehouse, after notice to the consignee, is such a delivery as will terminate the responsibility of the carrier (1 Pars. on Con., 668; Story on Bail., § 545; Ostrander v. Brown, 15 J. R., 39; Fisk v. Newton, 1 Denio, 45 ).

The notice which it is required shall be given to the consignee, must be such as will afford him a fair opportunity of providing suitable means to take care of the goods, or to carry them away. And if such notice is not suitable in point of time or other circumstance, the carrier and not the owner takes the responsibility, if they are landed and left exposed to danger or loss (Mayell v. Potter, 2 J. C., 371).

Upon these general principles of law, the liability of a carrier by water depends, therefore, upon the character of the notice to the consignee, and the manner of discharging the goods intrusted to his care; and where the fact is found, that the notice was not sufficient in point of time or otherwise; or that the attempted delivery was not made in a suitable place or manner, or at a suitable time; or that it was done while being exposed to the elements, or was left exposed to the elements, without a justifiable reason, the law adjudges the carrier responsible for all such damages as may thereby happen to the goods.

The referee, as a concluding fact from all the evidence, found that the defendant was guilty of negligence and breach of his obligation and duty as the carrier of the goods, in landing the licorice on the dock, with knowledge of its perishable character, on a day unsuitable to the landing and transportation of such goods, without reasonable notice to the consignee sufficient to enable him to cause the same tó be weighed, transported, and protected against injury by the weather. We are not called upon

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to review these findings, upon any allegation that they were not supported by sufficient evidence, but it is claimed, assuming the facts to be as found, that when they are coupled with such other facts as the defendant says ought to have been found, they show a complete discharge of his duty.

It appeared that on the 19th of September, the plaintiffs’ agent requested the defendant to land the licorice on that day, but he declined. He was then requested that if the next day should not be fine not to land it; and the defendant then said if the weather was fine on the next day he would discharge the licorice from the ship.

On the 20th of September (the next day) in the morning it rained and continued to rain until and at 9 o’clock in the forenoon, with thunder and lightning at 4, 7:50, and 8 o’clock. At 10 o’clock it was clear, and continued clear for one hour, when it became cloudy (light clouds for two hours and denser clouds thereafter),-and so continued till 2 o’clock and 37 minutes p.m., when it rained. At 3 p.m. it was still cloudy, but without rain. At 4 o’clock 25 minutes p.m. the rain again commenced, with thunder and lightning, and continued with increasing violence during the rest of the day and ensuing night.

Without further notice to the plaintiffs or their agent and consignee, the defendant, at or about 9 o’clock in the morning of that day (20th) commenced landing the licorice in good order upon the wharf, and continued landing the same until about J before 12 o’clock (noon), at which time verbal information from the defendant that the landing was in progress was given to the clerk of the consignee, and at 12 o’clock (noon) only about forty eases remained in the ship to be landed, all of which residue was landed in good order between 1 and 2 o’clock of that day on the wharf.

It will be seen that the rain on the morning of the 20th continued until 9 o’clock, after which time it was clear for a couple of hours, then became cloudy, then rained again a little after 2, and finally set in at 4, and continued a heavy rain during the afternoon and evening.

In such a state of the weather, and after the implied promise

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not to land the licorice if the weather was not fine, and without any further notice to the consignee, the defendant commenced discharging the licorice upon the wharf, where, by exposure to the elements, it was damaged. And although notice was conveyed to the consignee at about 12 o’clock of the same day, there was not, for sufficient reasons, enough time for him to remove or shelter the property.

The reasons for the consignee’s inability to remove the goods were, that by the laws of the United States goods of foreign importation could not be removed from the wharf until weighed by a government weigher. A weigher could not be procured until 2 o’clock. He continued to weigh, and finished at 5 o’clock. The plaintiffs with great diligence removed the goods, but could not, although they made extraordinary efforts, secure them from the rain which fell during the afternoon and evening.

Under these facts the delivery on the wharf was not of a character to exonerate the defendant, and unless there was other evidence which ought to have controlled the referee’s conclusions, his judgment must be sustained.

An officer of customs testified that he was present, officially, while the cargo was being discharged, and took an account of it; that his duties required him to take such account, and he had a right to not permit working before sunrise or after sundown, and to stop working if it stormed.

The, duty of the custom-house official was simply to protect the interests of the government, and in the discharge of that duty he had a right to exercise a certain kind of authority over the cargo, and to prescribe, to a certain extent, the time and manner of discharging it. But the superintendence of such officer in no respect affected or changed the obligations of the defendant. The officer could have prevented the landing the goods in the night-time, and might have stopped their being discharged during a rain. But if he omitted to exercise his authority, he certainly would not be liable; and I cannot see how the defendant can seek shelter behind the officer’s neglect of duty, and claim immunity for his own negligence.

Dissent

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The only additional fact which it was claimed ought to have influenced the referee’s decision, was that the master of the vessel upon examining his barometer found it was rising, and thereupon commenced unlading his cargo.

It is undoubtedly true that a common carrier is not responsible for injury to property, which, without his fault, has been caused by the elements, after it has been placed upon a wharf. In such case the liability, if any, is that of a warehouseman and not of a common carrier. But, be that as it may, the circumstance that the master discovered that the barometer indicated a clearing away of the rain, was not sufficient to justify a discharge of cargo at the late hour of the day and with the limited notice to the consignee.

We therefore think that the conclusions of fact reached by the referee were all that it was necessary for him to find; and that those he was requested to find, and refused to find, were wholly immaterial.

Upon these facts, under the principles of law which we have stated, it follows that the decision of the referee was correct.

The attempt to prove a custom or usage regulating the time - for landing goods on a wharf, to determine when the carrier’s responsibility ceases, was properly defeated.

And the further offer to show what constitutes a delivery of goods was an attempt to settle as a fact what is commonly considered a difficult question of law.

The judgment should be affirmed.

(dissenting). I cannot concur in affirming the judgment. I think the plaintiff had ample notice that the goods would be delivered on the day in question if the weather was suitable. The weather at the time the discharge commenced was fine and suitable, with every indication that it would remain so.

If the carman and weigher had been on hand, the great portion of the goods could have been safely housed. That they were not on hand arises from the fact that in consequence of it having rained in the morning they judged the weather would not be

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suitable during the day. In this they were mistaken. The defendant cannot be held for a damage occurring through their mistake. But I think the carrier, after the weather became threatening, was not justified in continuing to discharge. For the damage to such of the goods as were discharged after the weather became threatening, I think the plaintiff may recover.

Judgment shall be reversed and new trial granted, with costs to the appellant to abide the event.