Thomson v. Liverpool & Great Western Steam Co. — 44 N.Y. Super. Ct. 407

Majority

p. 407

DAVID THOMSON, et al, Plaintiffs and Respondents, v. THE LIVERPOOL AND GREAT WESTERN STEAM CO. (Limited), Defendant and Appellant.

Headnote

Bill of lading.—Negligence of carriers.—Motion for direction OF VERDICT, EFEECT OF.

Plaintiff shipped certain goods upon one of defendant’s steamships, under a bill of lading containing the following clause:— “ Goods to be taken by consignee immediately, &c., otherwise they will be landed by the master and deposited at the expense of the consignee and at his risk, &a., in the warehouse provided for that purpose, or sent to the public store, as the collector of the port shall direct, &c. &c.”

Upon the arrival of the vessel, defendant notified the consignee that said goods were upon its (defendant’s) dock, and that they must be removed during the day; that the company would no longer be responsible for them. They were not removed, and remained there during the next day, at which time a portion of the same were stolen, without negligence on the part of defendant.

Held, that the defendant was liable, under the above clause of the bill of lading, for damages for non-delivery.

When counsel for each party moves upon the trial for a direction to the jury in his favor, all questions of fact are thereby submitted to the judge; and his finding of any fact necessary to the direction he makes, is conclusive.

Before Sedgwick and Freedman, JJ.

Decided January 6, 1879.

Appeal by defendants from judgment entered on verdict and from order denying motion for a new trial made upon the minutes.

p. 408

The action was for damages for non-delivery upon demand of twenty ingots of tin, of value of $239, conigned to plaintiffs and shipped upon the steamship of defendant under a bill of lading which contained the following clause, viz: “ The goods to be taken from alongside by the consignee immediately the vessel is ready to discharge, otherwise they will be landed by the master, and deposited at the expense of the consignee and at his risk of &c., in the warehouse provided for that purpose, or sent to the public store, as the collector of the port shall direct, and when de-, posited in the warehouse to be subject to storage ; the collector of the port being hereby authorized to grant a general order for discharge immediately after entry o.f the ship.”

The answer in substance was that on the arrival of the vessel the tin was placed upon defendant’s dock in good order and that said dock is reasonably well protected, and guarded against damage by weather or loss by theft: that thereupon and about noon of Saturday, March 4, 1876, the defendants notified plaintiffs they must remove said tin on that day, that defendants did not wish the tin to remain on its dock over the following Sunday, and defendant refused to be responsible for the custody of the tin after that day; that defendants expecting and believing that plaintiffs would > remove the tin on Saturday took no steps toward depositing the same in any warehouse; that plaintiff did not remove the tin on the Saturday, and that during the night of Sunday the tin was stolen from the dock by river thieves, without any fault or negligence on the part of defendants. -

' The testimony may be stated for the purpose of this appeal, as showing that the plaintiff had notice of arrival of the tin about noon of Saturday, and that thereafter the goods remained ready for delivery down to the close of business hours on Saturday ; and that

p. 409

this was a reasonable time to give the plaintiffs to remove the tin ; that the tin remained on the wharf over Sunday; that the wharf had special protection against thieves, and two watchmen were employed, but that on Sunday night it was stolen.

The judge directed a verdict for the plaintiff, and a motion upon the minutes for a new trial was denied.

A. C. Merrett, for appellants.

James Thomson, for respondent.

The course taken upon the trial by the learned counsel for the respective parties, made a very narrow question for the judge at the trial and for this court on appeal. Bach counsel moved for a direction to the jury in his favor. All questions of fact were thereby submitted to the judge and his finding as to any fact necessary to the direction he did make is conclusive.

The defendant’s counsel moved on specific grounds, thereby turning the attention of the judge away from all other grounds. The first two grounds were that plaintiff had notice of arrival and had reasonable time to remove. The learned court, on the facts, acceded to these propositions. The sole remaining ground was that thereafter the goods were stolen without any negligence by defendants. To this the court did not agree. The court made some remarks in giving a direction for the plaintiff. They were concise and suggestive—as the custom is upon a trial—and were not meant to be exhaustive. If they had not been made the inference would have been that the court may have found as a fact, that the loss by theft occurred from the negligence of defendants, and this would be conclusive. It appears from the opinion of the court, however, it deemed that after responsibility as carrier ended, that is, when reasonable time had passed after

p. 410

notice to remove, there was a specific contract duty on the part of defendants to store in a warehouse; that the bill of lading substituted the particular duty of seeing that the goods had the special protection of a warehouse, in the place of the general obligation of a bailee or warehouseman, or of providing a safe place of deposit. In the latter case, it would be a question of fact as to whether the carrier had fulfilled the general obligation, by allowing the tin to remain on the dock, under the circumstances, and one of the facts to be considered would have been whether the goods could have been sent to a warehouse before Sunday, if giving reasonable time to remove required that they should remain ready for delivery through the business hours of Saturday.

On the terms of the bill of lading, this view should be sustained. It said, in substance, that unless the goods are taken from alongside immediately after the vessel is ready to discharge, “ they will ” be “ deposited in the warehouse provided for that purpose.” The agreement to deposit in a warehouse has the quality of a contract, and the promise must be fulfilled. This construction is reasonable in view of what would have been the duty of the defendants, if the special clause had not been made. That duty would have been, to provide a proper place of deposit for the goods, he not being at liberty to leave them on a wharf (Redmund v. S. N. Y. & P. Steam Co., 46 N. Y. 583 ). It intended only to state a general rule, but not to intimate that if no contract had been made, that it would under any circumstances or the facts of this particular case be a breach of duty, to leave goods properly guarded on a wharf, with special protection.

The bill of lading in express and unconditional terms shuts in the parties to a special mode of performance of the duty; viz., the carrier is to place the goods in a warehouse.

p. 411

The judge found, therefore, and correctly, that the goods being on the wharf was a breach of defendant’s contract, and their then having been stolen is not an excuse for the non-performance of the obligation to deliver.

The other exceptions have been examined, but on the law as above stated they were either not material or were not well taken.

The judgment and order appealed from are affirmed with costs.

Freedman, J., concurred.