Collins v. Burns — 36 N.Y. Super. Ct. 518

Majority

p. 518

HENRY COLLINS et al., Plaintiffs, v. JOHN BURNS et al., Associates or Copartners under the name of THE BRITISH AND NORTH AMERCAN ROYAL MAIL STEAM PACKET COMPANY, Defendants.

Before Barbour, Ch. J., and Monell and Freedman, JJ.

Decided December 31, 1873.

Headnote

The following provision in a bill of lading : “ The goods to he taken from-alongside hy the consignee immediately the vessel is ready to discharge, or otherwise they will he landed hy the master, and deposited at the expense-of the consignee, and at his ris7c of fire, loss, or injury in the warehouse provided for that purpose on the steamship wharf at Jersey City, or sent to the-public stores,” etc, is in effect an agreement on the part of the carriers that they will keep the goods safely, and deposit them in a warehouse or in a public store, in case they shall not be taken from alongside by the owner. The portion of the provision that the property shall be thus: stored at the owner’s risk of fire, loss, etc., was intended to cover such injury or loss as might be sustained while the goods were thus stored.

In the case at bar, the goods were landed from the ship, and placed alongside ready for delivery to the consignee, and were there delivered, by-mistake, by the employes of defendants to some swindler or thief, whe stole and carried them away.

Held, that under this contract the goods continued and remained in the-possession of the carriers until they were delivered to the thief by them., and consequently they were liable to the owners for the loss of the: goods.

In this case the court directed a verdict for plaintiffs»

p. 519

and ordered the exceptions to "be heard in the first instance at General Term.

The question of the liability of defendants on a "bill of lading was the only question litigated on the trial.

The facts appear sufficiently from the opinion of the court.

Brown, Hall & Vanderpoel, for plaintiffs.

A. J. Vanderpoel, of counsel.

D. D. Lord, for defendants.

The bill of lading in this case contained this provision : “ The goods to "be taken from alongside by the consignee immediately the vessel is ready to discharge, or otherwise they will be landed by the master, and deposited at the expense of the consignee, and at his risk of fire, loss, or injury, in the warehouse provided for that purpose cm the steamship wharf at Jersey City, or sent to the public store,” etc. The goods were landed from the ship and placed alongside ready for delivery to the consignees, and were there delivered, through mistake, by the employés of the defendants to some swindler, who thus stole and carried them away.

The clause in the bill of lading above set forth is in effect agreement on the part of the carriers that they will keep the goods safely, and deposit them in a warehouse or in a public store, in case they shall not be taken from alongside the ship by the owner. The provision that the property shall be thus kept and stored at the owner’s risk of fire, loss, etc., was intended to cover such injury or loss as might be sustained while the goods were thus stored. The property remained in the possession of the carriers, therefore, under their con

p. 520

tract, at the time such goods were delivered Tby their servants to the thief. The defendants are therefore liable to the plaintiffs for the loss of the goods, and the latter must have j udgment upon the. verdict accordingly, with “costs.

Morell and Freedmar, JJ., concurred.

Rote.'—See the' case of Gleadell d. Thomson (Superior Court Deports, vol. 35 [3 Jones & Spencet'], p. 232), decided at General Term, February, 1873. Opinion of the Court, by Yah Vorst, J.

A bill of lading with similar provisions was considered by the court.

Reporters.