Gleadell v. Thomson — 35 N.Y. Super. Ct. 232

Majority

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BENJAMIN GLEADELL, Plaintiff and Appellant, v. ALEXANDER A. THOMSON et al., Defendants and Respondents.

Headnote

The bill of lading provided—“ The goods to he talcen from alongside hy the consignee immediately the vessel is ready to discharge, or otherwise the privilege is reserved to the vessel to land them on the pier, or put them into craft, or deposit them in the warehouse designated by the collector of the port of New York, all at the expense of the consignee, and at his rish, loss err injury.

If the carrier intended to insist that the goods should be taken from alongside, he must notify consignee of readiness to deliver and the place of delivery, and reasonable opportunity must be afforded, for consignee to make necessary preparation on his part to receive the same. From the fact of the vessel going to her usual pier and landing the goods there without any such notice to consignees, it may be inferred that it was for the convenience of the carrier, and was a waiver of the requirements of the bill of lading that the consignee should take the goods alongside.

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The landing by a carrier of merchandise on a public or private wharf or pier does not terminate his liability as such; this act must be accompanied with reasonable notice to the consigee, to whom must be afforded a fair opportunity to remove and care for the goods before the responsibility of the carrier ceases, should the goods be mixed with other merchandise, so that they cannot be distinguished or separated. They should be separated and set apart from other merchandise by the carrier, so that the consignee can remove and take care of the same (The Ship Ben Adams, 2 Benedict, 449; The Eddy, 5 Wallace, 481,495; Kent's Commentaries, 8<Z Vol.). And even after the exercise of this care and diligence by the carrier, if the goods are not seasonably removed or taken care of by the consignee, or the consignee refuses to receive them, the carrier cannot abandon nor negligently expose them to damage, but in such case, when his responsibility as a carrier ceases, that of a warehouseman commences.

For a full and able review of the authorities on this question see the opinion of the court by Vas Vobst, J.

Before Monell, Sedgwick, and Van Vorst, JJ.

Decided February 1, 1873.

■ This is an appeal from judgment, entered in favor of the defendants, against the plaintiff, on the 12th day of June, 1872, and from an order denying the plaintiff’s motion for a new trial.

The action was brought by the master of the steamship Celia, a vessel plying between the port of London, in England, and the port of ETew York, to recover $994.62 for freight upon 513 bundles of Russia iron carried from the former to the latter place, and then delivered to the defendants, the owners.

The defendants in their answer allege that the transportation, handling, and unloading of the merchandise was conducted so badly and negligently by the plaintiff and his agents, that a portion of the merchandise was damaged to the extent of $979, which the defendants claimed to recover, 'and counter-claim against the plaintiff’s demand for freight. The bill of lading, signed in London when the goods were received on board ship, exempts its owner “from any act, negligence, or de

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fault whatever of the pilot, master, or the mariners.” The bill also provided that “ the goods be taken from “alongside by the consignee immediately the vessel is “ ready to discharge, or otherwise the privilege is reserved to the vessel to land them on the pier, or deposit “them in the warehouse designated by the collector of “ the port of blew York, all at the expense of the consignee, and at his risk of fire, loss, or injury.”

There is evidence that some of the bundles were in a wet condition when received at London on the ship. An entry in the margin of the bill limits the number as wet to five.

The vessel arrived in KTew York on Thursday, the 7th July. The defendants, who had been expecting the vessel, knew of its arrival at the time. The vessel had a general cargo of assorted merchandise, consisting of dry goods in crates, drugs in packages, iron and steel, etc., etc. The removal of the .freight from the vessel commenced immediately, the ship’s men working all Thursday night. At what hour the defendants’ merchandise came out does not distinctly appear; but at about mid-day of Friday, the 8th, was out and piled, some on the north, and a portion on the south, side of the pier. Iron of Phelps, Dodge and Co. was also placed on the same side of the pier. The pier was closed with a good roof, but it had openings on its north and south sides, which left exposed the merchandise to the weather. It had a gate, and was under the charge of the agents of the company.

One of the plaintiff’s witnesses says, the defendants’ iron was placed on dunnage on the pier. On the other hand, a witness of the defendants says, it was intermixed with iron belonging to others, of similar appearance, and could be distinguished by its shipping marks only.

On Friday, about noon, the defendants sent their carts to remove the iron, the carmen taking with them tarpaulings to protect the same from rain, which was threat

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ened. The merchandise, although lying on the pier, had not been weighed by the Custom House officials, and could not be removed until it was so weighed. The iron had been covered by the agents of the vessel with the ship’s tarpauling ; but as there was other merchandise which belonged to other parties to be covered, a portion of the defendants’ iron was exposed. There was conflicting evidence as to whether or not the ship’s tarpauling really covered and protected all of the defendants’ iron. There was some question, also, as to the sufficiency of the covering furnished by the ship’s company, in quality, to protect the iron from rain. As the iron could not be at once removed, the weighing not having been commenced, and as the storm was at hand, the defendants’ servants covered their own iron with the tarpaulings they had brought for the purpose of protection. It rained while they were engaged in this work. They had used two of their taupaulings for the purpose, and were about to cover the remainder, which was exposed, with a third and the principal tarpauling, when it was forcibly taken from them, in opposition to their protestations, and taken to the ship by the stevedore or other persons engaged in discharging the vessel, and was used to cover the hatchway of the ship, which was open and exposed to the rain. The reason assigned for the taking away of the defendants’ tarpauling by the persons who removed, or ordered its removal, was, that the hold of the vessel was to be covered in preference to anything else. The defendants sent for other tarpaulings, but before their arrival the iron had got wet. The iron was on the next day, Saturday, removed from the pier by defendants.

Upon opening the bundles at the defendants’ warehouse, it was found that sixty-nine bundles were injured and damaged by wet, and, as the persons who examined the iron stated, “it was very plain to see it was fresh water caused by the rain. The injury under

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the evidence was of a character to deteriorate the market value of the merchandise. It was sent to auction for sale, and notice of the sale was given to plaintiff. The market value of the iron in a sound condition was proven to be 11-|- cents a pound, gold. It sold at auction at so reduced a price that the loss on sixty-four bundles, exclusive of the loss on five bundles marked in the bill of lading as wet, amouted to $979.

At the close of the defendants’ evidence, the counsel for the plaintiff moved for judgment in favor of plaintiff, upon the following grounds:

First. That the facts proven by the defendants were a mere trespass, and did not in any way constitute a set-off or counter-claim, which would, under the pleadings or otherwise, be available to defeat the plaintiff’s claim for freight.

Second. That under the clauses in the bill of lading, the plaintiff was not' responsible for the damage to the iron claimed by the defendants to have occurred on the dock, and relied upon by them as a defence.

Third. That nothing had been proven by the defendants which constituted a defence to the plaintiff’s claim, and that the court should direct judgment therefor.

The court denied the motion, and the plaintiff’s counsel duly excepted.

The jury allowed the defendants’ claim for damages, and rendered a verdict for the plaintiff, of $17.

So much of the judge’s charge and the exceptions as are necessary to be considered, appear in the opinion.

George W. Wingate, for appellant.

Thomas C. T. Buckley, for respondent.

The rain on the 8th July was an efficient and proximate cause of the injury which the defendants’ iron sustained. When hoisted up the hatchway

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in defendants’ warehouse from the trucks, the water was running out; and being examined shortly afterwards it was found to be still wet, and the injury such as fresh water would occasion ; under such circumstances, it is useless to inquire whether the injury might not have been produced during the voyage, by some of the excepted causes mentioned' in the bill of lading. No evidence was adduced as to the presence of such causes in the vessel. But on the other hand, the plaintiff’s proof shows that the storage of the iron in the vessel was proper, and that when it was “ hove up,” and landed on the dock, there were no signs of wet.

The bill of lading signed by the master, expressly limited the number of bundles received in a wet condition at five. Such entry made at the time, by the party to be chiefly affected, would be presumed to state most broadly the number received by him in a wet condition. The damages on five bundles are not embraced in the verdict and judgment in this action.

The jury have found that the injury complained of was occasioned after the iron was unloaded and placed on the pier.

The plaintiff’s counsel claims that the contract of affreightment was completed when the iron was placed on the pier; that the goods were then legally delivered to the consignees by the carrier, and that he is not responsible for injuries thereafter occurring.

In support of this proposition, it is urged, on the part of plaintiff, that it was the duty of the owner to have taken the goods “from alongside” immediately the vessel was ready to discharge, otherwise the privilege was reserved to the vessel to land them on the “ pier.” What particular “pier” is not stated. There is no evidence that the defendants were notified by, or in behalf of, the carrier, at what time or at what place the vessel would be ready to discharge, or that opportunity or choice was afforded them to take the goods “from

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alongside.” The vessel went immediately to her own dock, and without notice to the consignees commenced to discharge her whole cargo. In this work several hours were consumed before the defendants’ iron, which lay near the bottom of the barge was reached, goods above requiring to be first removed. A “night permit” having been obtained, a portion of the cargo was taken out on Thursday night. Haste was required in her unloading, as the vessel was to commence her return voyage on the following Saturday, and in the meantime she was to be both disburdened and reloaded.

If the plaintiff intended to insist strictly on the terms of the bill of lading, that the goods should be removed “ from alongside,” notification of the vessel’s readiness to discharge, and where, should have been given to the defendants, and reasonable opportunity afforded them to make the necessary preparation on their part to do so. Spch requisition is surely not unreasonable. It may be inferred that in going to the pier, which proved to be her own, and landing the goods there, it was for the more convenient discharge of the whole cargo, and, as far as defendants were concerned, was a waiver of the removal “from alongside.”

The simple deposit of the goods on the pier did not, in law, discharge the carrier from further responsibility for their safety, and that whether they were landed on Thursday night or Friday morning. The time of landing, that is whether it be in the night or in the day time, does not control.

It has been repeatedly adjudicated that the landing by a carrier of merchandise on a public or private wharf or pier, does not terminate his liability as such. This act must be supplemented by due and reasonable notice given to the consignee, and a fair opportunity afforded him to remove the goods before the responsibility of the carrier can be ended. Nor should the goods landed be mixed with the merchandise of others, so that they

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cannot be distinguished. They should be separated and set apart (The Ship Ben Adams, 2 Benedict, 449; The Eddy, 5 Wallace, 481, 495; 3 Kent’s Com.).

Nor in the event that the goods be not seasonably removed, or though the consignee refuse them even, may the carrier abandon or negligently expose them to damage. If the goods remained in his possession, his liability as warehouseman would commence when his responsibility as carrier ended.

In the case of Price v. Penell (3 Carn’s. 322), six boxes of marble tomb tops had been shipped on a vessel at New York, to be delivered to the owner in good order at the Port of Wilmington, N. C, to which place the vessel Avas bound. Notice was given at Wilmington, by the consignee of the vessel, to the owner of the marble late in the evening of the day of the marble’s having been taken out, and that it was lying on the wharf. The owner of the marble had heard during the day of the arrival of the vessel; late in the evening he visited her at the wharf, and was informed that the marble was unloaded.

The next morning he went to the wharf, and, on examination, found some of the tops broken. The master claimed, and'the evidence tended to show, that the damage had not occurred during the voyage, as they had been properly stowed against the stanchions on their edges. On the trial, the defendants, the owners of the vessel, asked the judge to charge the jury that the plaintiff could not recover without shoAving that the marble was broken whilst in the possession of defendants, and before the termination of the voyage, and that the carrier’s duty was ended by the delivery of the marble on the wharf, at which time it was not shown that the same was injured. The court refused so to charge. But did charge that a delivery at the wharf was not sufficient to exonerate defendants from their liability as carriers, without notice to the consignee, and also that the con

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signee has a reasonable time after notice within which to take possession of the property, and if the marble was broken on the wharf overnight, the consignee not having had a reasonable time to remove it before the next morning, the carriers would still be liable.

The ruling of the judge on the trial was sustained by the Court of Appeals.

The case of Redmond v. Liverpool, N. Y. &. Phil. S. S. Co., 46 N. Y. 578 , contains an elaborate review of the law respecting the duty and liability of carriers in regard to the delivery of goods on a wharf or pier, when no particular place of delivery has been designated by the shipper or consignee.

In that case the carrier had delivered 23 boxes of merchandise consigned to a party at New York on pier No. 44, which was under its control. After being landed, they were checked off by a person acting for the ship. The consignee carted away and gave receipts for all the boxes except one, which after being landed safely, had in some way disappeared. The carrier was held liable to the owner for the value of the lost package. It was held in that case, that a carrier by water is not relieved from all responsibility by a discharge from his vessel at a wharf or place of discharge not selected by the owner for storing his goods. That, until a reasonable time has elapsed for the owner to remove the goods, they are at the risk of the carrier. See also Ostrander v. Brown, 15 Johns. R. 39; McAndrew and others v. Whitlock, 2 Sweeney, 623.

Under the bill of lading in the case before us, the privilege was reserved to the vessel to land the iron on the pier, or put them into craft, or deposit them in the warehouse designated by the collector of the port of New York, in the event of the goods not having been removed ‘ ‘ from alongside ” by the owner. As already observed, no particular pier was designated in the bill. Plaintiff elected to place them on a pier under his own

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control, attached to which was a gate from which the goods were delivered to consignees.

The defendants had heard of the arrival of the vessel. From whom they had heard this does not appear. At mid-day, on Friday, they sent tarpanlings to cover, and carts to remove, their property. The iron had not yet passed the custom-house scales, and could not be removed until weighed, even had it been-prudent to have attempted it in view of the impending storm. It had been the duty of the plaintiff, up to this time, and at least until a reasonable time after defendants’ actual knowledge, on Friday noon, of the goods being on the pier, to have cared for them with the diligence required of a common carrier. Plaintiff’s company had a large shed at the bulkhead on the pier, where two-thirds of the cargo had been stored, which was entirely secure ; defendants’ merchandise was not placed there, but it was piled farther down the dock, under a shed which was covered on the top, but was not enclosed all the way down, and in the sides of which there were also large openings. The iron was arranged with its ends sticking out towards the open sides, and was exposed to the weather. The agents of the plaintiff in charge of the merchandise knew of its exposed condition. It was Bussia sheet-iron, whose surface was readily injured by water. After placing it in this position, and when they saw the storm coming, they had placed over this, and other portions of the cargo, the ship’s tarpaulings. They claim in this manner to have covered all the cargo except that which was in the shed in the bulkhead, and to have done" it well. The action of the plaintiff in this regard does not indicate that he considered himself relieved of all liability by simply placing the iron on the pier. But whatever he undertook to do should have been so well done, as to have actually shielded the property from the coming rain.

The servants of the defendants on their arrival (Friday

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noon), on examination, concluded that their goods were not sufficiently covered, “and that they were exposed to damage from water. Defendants’ goods had not been distinctly separated, but were lying intermixed with similar merchandise belonging to others. They were about to cover a portion of their iron much exposed, and upon which the rain fell, with their remaining tarpauling, having used the others on different portions of the merchandise, when it was forcibly taken from them by the ship’s stevedore, and others engaged in the plaintiff’s service in unloading the ship, and was used by them to cover the hatchway of the vessel, and to protect the property of others in its hold. Whether this act was a trespass or not, it is of no consequence to inquire. It shows that the defendants had not yet been entrusted by the carrier with the exclusive control and care of their own goods. It is only reconcilable with the idea that the carrier considered the goods still in his care, and that in his judgment they were already sufficiently protected by the ship’s tarpaulings, and he was willing to assume, in his anxiety to protect other property in his charge, that the precautions he had taken to guard defendants’ property was sufficient.

The plaintiff’s witness, Brush, testified: “I saw the storm coming up some time before it came. I got my tarpaulings out, got the men to work, and covered it up,” and he insisted that he had covered it so well that it was shielded from the rain.

In so understanding, and in his efforts to meet his responsibility, with respect to the goods of the defendants and others in his charge, the plaintiff acted under the legal obligation resting upon him. But if the goods were damaged by the rain, notwithstanding what he did, he is responsible, not as a trespasser in taking the defendants’ tarpauling, but as a common carrier.

There is nothing in the excepted clauses in the bill of lading which excuses the carrier from damages sus

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tained on the pier, although it may have resulted from the improper conduct of his own employés.

The evidence fully justified the jury in finding that the injury resulted from the exposure to rain while the goods were on the pier (in the plaintiff’s case). The judge instructed the jury, “ It is for you to say when the iron was injured; and if you find it was injured here, while under the care of steamship’s company, you will then ascertain the amount of the injury it then sustained.” What was said by the judge in respect of the damage being the result of the taking away of the tarpauling by the stevedore or other agents of the ship, could hot affect the substantial result. In one aspect it was true that if the tarpauling was necessary to protect the iron from the rain, and its abstraction left it exposed, then the damage might be said to follow the act. The damages proved on the sale of the goods at auction was $979, and that is the precise amount the jury allow.

We see no substantial error in the ruling and decisions on the trial, or in the result. The motion for a new trial is denied, and judgment should be affirmed, with costs.

Cases cited

Redmond v. Liverpool, New York & Philadelphia Steamboat Co. 46 N. Y. 578 N.Y. 1871-12-05 p. 240