Hyperlawhypertext legal database Tarbell v. Royal Exchange Shipping Co. 53 N.Y. Super. Ct. 190

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Tarbell v. Royal Exchange Shipping Co.

53 N.Y. Super. Ct. 190 21 Jones & S. 190 Court N.Y. Super. Ct. Decision date 1886-05-03 English

Delivered by Freedman, J.

Contents

Majority

p. 190
CHARLES W. TARBELL, Respondent, v. THE ROYAL EXCHANGE SHIPPING COMPANY (limited), Appellant.

Headnote

Bill of lading—delivery by ship, what constitutes under special provisions. —Assignment by vendee ofpropen'ty of claims arising after sale against third persons in respect of the property sold, effect of.—Assignment by one to whom part of the merchandise covered by a bill of lading has been sold, effect of.
Defendant issued its bill of lading at Singapore, India, to Katz Bros., whereby it undertook to transport one thousand seven hundred and three slabs of tin to London, and thence to the port of New York by a steamer of the Monarch Line. The bill of lading provided, among other things, that the merchandise shipped should be delivered from the ship’s deck (where the shipowner’s responsibility shall cease) at the port of New York, and be received by the consignee immediately the vessel is discharged, or otherwise it would be landed and stored under special provisions made relating to such storage ; and also providing that the contract for transportation should be subject to exceptions for losses arising through pirates, robbers, thieves, . . . during the voyage or at the port of discharge ; Katz Bros, sold the tin to Mayer Bros. & Co., and indorsed the bill of lading over to them. On the arrival at the port of New York of the vessel carrying the tin, Mayer Bros. & Co. entered the tin at the custom-house, and obtained a free permit. They then paid the freight to the consignees of the vessel and obtained a delivery order for the tin. This they indorsed: “ deliver against our order only,” and presented it to the delivery clerk of the vessel; on the same day they sent weighers to weigh the tin, at the defendant’s regular wharf, in five-ton lots. The weigher found that some of the tin had been discharged. He returned the next day, November 28, and found about thirty tons discharged and in good order. This he weighed, dividing it into six lots of five tons each, numbering them from one to six, both inclusive, and piled each lot by itself, and about noon of that day sent returns of the weights to Mayer Bros. & Co. One return was of four hundred and ninety-eight slabs, and covered lots one to five, both inclusive. This return, with a bill and delivery order for the four hundred and ninety-eight slabs, were sent, about one o’clock the same day, by Mayer Bros. & Co. to Peter Hayden, to whom they had sold them, who, between one and three the same afternoon, indorsed the delivery order and delivered it with the weigher’s return to Lucius Hart & Co., to whom he had sold the same. On the next day, Lucius Hart & Co. sent a double-horse and single-horse
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truck to remove the tin. One of their employes accompanied the trucks, who delivered to and left with the contractor of the wharf the delivery order for the four hundred and ninety-eight slabs contained in said five lots as they had been set apart, and assumed the control thereof. The trucks took away that day about six tons. The next day (Thanksgiving day), November 30, none of the tin was removed, although the day was fit and proper, and the wharf was open for business, and other merchants sent for and took away goods. On the morning of December 1, sixty-three of the four hundred and ninety-eight slabs were missing. The cause of the loss did not appear.
Held, that under the bill of lading the four hundred and ninety-eight slabs were duly delivered by the ship before the sixty-three slabs disappeared.
The interests of Mayer Bros. & Co. and Peter Hayden in the sixty-three slabs having terminated by their respective sales, nothing passed by subsequent assignments made by them of all claim against the defendant in respect of said sixty-three slabs.
In case of a general assignment for benefit of creditors by one to whom part of the merchandise covered by a bill of lading has been sold, the assignor never having held or been entitled to hold the bill of lading, his assignment only passes a title to the merchandise, with no rights against the issuer of the bill of lading as carrier.
Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.
Decided May 3, 1886.
Appeal by defendant from judgment entered in favor of the plaintiff upon the decision and findings of a judge at special term.
The action was brought to recover for a non-delivery of sixty-three pigs or slabs of tin, part of a consignment of one thousand seven hundred and three slabs shipped by Katz Bros., to whom defendant issued its bill of lading.
A jury trial having been waived, the issues were tried by a judge of this court, who found, as matters of fact, that the defendant had not delivered the sixty-three slabs of tin in question ; that it did not safely carry and deliver the same in' accordance with the terms of its agreement or bill of lading ; that defendant kept the control, possession, and exclusive supervision over said consignment of tin, except such parts as it delivered and took receipts
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specifically for, and until after its failure to deliver the tin in question; and that defendant had wrongfully failed and refused to deliver the same. It further found that defendant was negligent in its care of the consignment of tin ; that plaintiff and his assignees were not negligent in the matter of its removal; that the tin in question was not lost by pirates, robbers or thieves; that its value was $1,481.22, and that defendant was not the shipowner referred to in the bill of lading; that Katz Bros, sold the whole consignment to Mayer Bros., and indorsed over and delivered to them the bill of lading ; that Mayer Bros. & Co. sold twenty-five tons of said consignment to one Peter Hayden, who in turn sold the same to Lucius Hart & Co.; that said sixty-three slabs were part of said twenty-five tons ; that Lucius Hart & Co. made a general assignment of their property to John L. Hill, for the benefit of their creditors ; that Mayer Bros. & Co., in March, 1883, assigned to said Hill their claim against defendant for said sixty-three slabs; that Peter Hayden, in March, 1883, assigned to said Hill any and all claims to said sixty-three slabs as well as against the defendant; that on August 8, 1883, the said John L. Hill, as assignee of Lucius Hart & Co., sold to the plaintiff, Charles W. Tarbell, for value received by the said assignee and paid by the said plaintiff, all his right, title and interest as such assignee, by reason of the assignments executed to him by Mayer Brothers & Co., Peter Hayden and Lucius Hart & Co:, and assigned, transferred and delivered the same and including the cause of action involved in this suit, over to the said plaintiff, who continued to own and hold the same.
And as matter of law, the judge found that plaintiff was entitled to judgment against defendant for $1,481.22, with interest.
The learned judge wrote in support of his findings, this opinion :—
“ O’Gormar, J.—There is no dispute as to the mate
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rial facts in this case, and but little uncertainty as to the rules of law which are applicable to the facts.
“The action is brought by the plaintiff as assignee of the claim of Lucius Hart & Co., of the city of Hew York, to recover $1,506.60, being the conceded value of sixty-three slabs of tin which the defendants, common carriers of merchandise, were, by their bill of lading, bound to deliver to said Hart & Co. in the port of Hew York, and did not deliver but converted to their own use.
“ The defendants answer, that they made good delivery of the slabs on their dock to Hart & Co., and that while there, after such delivery, the slabs were abstracted, but by whom or in what manner they do not say, and the evidence does not disclose.
“ The material facts are these ; The bill of lading provided that the goods should be delivered to the consignee from the ship’s deck in the port of Hew York in good order and condition, and be removed by the consignee immediately the vessel was ready to discharge, or otherwise they would be landed and stored at the sole expense and risk of .the consignee in warehouse or public store, &c.
“Mayer Brothers & Co., of Hew York were the consignees of a shipment of seventeen hundred and three slabs of tin, weighing about eighty-five tons, which the defendants agreed to carry from Singapore to the port of Hew York, and deliver there to the consignee or his order.
“ The tin arrived in the port of Hew York on Hovember 25, 1882, in the steamship ‘York City,’ which was then employed and controlled by defendants. This ship, on her arrival, went to defendants’ dock at Jersey city to discharge. This was a private dock, owned and used by defendants in their own special business.
“Mayer Brothers had previously sold ‘to arrive,’ twenty-five tons of tin out of this shipment of tin to one Hayden of Hew York city, and he had sold the same ‘ to arrive ’ to Lucius Hart & Co., Hew York city. The sixty-three slabs of tin in suit weighed altogether six thousand
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six hundred and twenty pounds, and each about one hundred and ten pounds, and were part of said twenty-five tons so sold to Hart & Co.
“ Hart & Go., so far as their right to have these sixty-three slabs delivered to them is concerned, had all the rights, and were subject to all the obligations, which Mayer Brothers, the consignees, were possessed of, or were subject to, and, for all purposes of this action Hart & Co. may be regarded as the consignees.
“ On November 27, 1882, Mayer Brothers received from the agents of the defendants notice of the arrival of the steamship ‘York City,’ with the shipment of tin on board, and received, also, an order for the tin when discharged. They at once directed their weigher to weigh the tin. On the same day, November 27, an employee of the weigher went to defendants’ dock at Jersey city, and found that the tin had not yet been discharged from the hold. ' On the next day, November 28, he again went to the defendants’ dock—found some of the tin discharged, and he weighed the twenty-five tons setting them apart on the dock and separating the tin into five lots or piles weighing five tons each, the piles being numbered respectively 1, 2, 3, 4 and 5.
“ In the evening of November 28, Hart & Co. received notice of the discharge of the tin, together with an order for the delivery to them, and they at once directed their cartman to proceed with all dispatch to haul the twenty-five tons of tin from the dock in Jersey city to their store in Burling slip, and to employ all the carts he could get.
“Their cartman started for defendants’ dock on the next day, December 29, before seven a. m., with two trucks, one a double, the other a single truck, and hauled tin from the said piles’ numbered 1, 2, 3, 4 and 5, talcing three loads on that day. Two loads were taken in the double truck, carrying about fifty slabs in each load, and one load in the single truck, carrying twenty slabs. These slabs averaged in weight one hundred and ten pounds each, and seventy slabs, weighing nearly four
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tons, were taken away from the defendant’s dock on account of that twenty-five tons on that day, November 29.
“There is evidence that the whole twenty-five tons could not have been removed in that winter season with less than twelve loads, or in less than three days, at the usual rate of hauling.
“ The cartman of Hart & Co. did not haul any tin on November 29 after two p. if.
“At the time of hauling this tin, the streets were rendered difficult of travel, by reason of ice, and were full of holes, and there was a great rush and block of trucks on the defendant’s dock, by reason of the ships discharging cargo on the dock, and of numerous carters hauling merchandise on behalf of the various consignees, who were twenty-two in number.
“ The carter of Hart & Co. was never used to haul tin later than two P. M. from that dock in that season.
“ He was required by the delivery clerk of defendants to sign, and did sign, a receipt for each load of this tin hauled by him from the dock, and such was the rule of defendants on the dock. This rule, however, was not regularly enforced, and it was in evidence that carters were frequently allowed to remove merchandise from the dock without giving any receipt therefor at the time.
“The carter of Hart & Co. testified, that when proceeding to haul his second load on November 29, he remarked that some of the piles had been disturbed in his absence, and some slabs removed from them. Heat once informed the delivery clerk of the defendants on the dock, of the loss, who, at the time, gave the matter no attention. The recollection of the carter, however, is not clear as to whether he observed this abstraction of the tin from these piles at that time (November 29), or at a later occasion, viz., on the morning of December 1. The delivery clerk, a witness on behalf of the defendants, testified that his attention was first called to the matter on the talcing of the first load on December 1.
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“It is, however, certain that the sixty-three slabs were abstracted from these piles and were never received by the cartman of Hart & Co., and that their loss took place either before the afternoon of November 29 or before the morning of December 1.
“ The intervening day, November 30, 1882, was Thanksgiving Day, and a legal holiday. The carter of Hart & Co. did not haul any tin from defendants’ dock on that day, although the defendants’ dock was kept open, and two out of the twenty-two consignees of the cargo hauled some goods from the dock on that day.
“ On the morning of the next day, December 1, he resumed the hauling, and continued from day to day until he had taken all the tin composing the five piles, numbered 1, 2, 3, 4 and 5, less the missing sixty-three slabs which were abstracted from the piles, and were never actually received by him or by the consignee.
“The cause, time and manner of the loss of these sixty-three slabs are unexplained by any evidence in the case, and that question is left to mere conjecture and surmise. There is no evidence to warrant the court in finding, either that these slabs were stolen, or that they were, by mistake, delivered to or taken by carters than those of Hart & Co., and there is no evidence that they were not retained by the defendants, and that they are not now in possession of defendants. Plaintiff claims in this action that they were converted by the defendants to their own use. Defendants contend that they were delivered to Hart & Co. before the loss took place, and after all responsibility of the defendants, as carriers, had ceased.
The whole field of consideration as to time is confined to the period between the morning of November 28, when the twenty-five tons of tin were discharged on the dock and weighed by the weigher of the consignee, and the morning of December 1, when the carter noticed and called the attention of the defendant’s delivery clerk to the abstraction of the tin from the piles.
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“The questions of law that seem to me to arise from the facts are these :
“First.—Did defendants hear towards the consignee of the tin the attitude of common carriers for hire at the time these sixty-three slabs of tin were taken from the piles ? If they did, the defendants were liable for the loss absolutely as insurers, and the plaintiff must recover.
“Second.—If their liability as carriers and insurers had ceased before these sixty-three slabs were abstracted from the piles by reason of the delay of the consignees in removing the tin, were not defendants still bound to look to the safety of the tin as quasi warehousemen or bailees for hire ?
“And would they not be liable for the loss unless they proved affirmatively or by necessary inference that they had used such degree of care for the tin as was required by law from warehousemen or bailees for hire—that is to say, ordinary care, or such care as any man of ordinary prudence should give to the care of his own property ?
“The absolute responsibility of common carriers for the safety of merchandise confided to them for carriage continues until the consignee has had a reasonable time to remove his goods after notice of their arrival; and where there is no dispute as to the facts of the question, what is a reasonable time to remove the goods is a question of law for the court, and depends on the special state of facts in each case. There is no hard-and-fast rule on the subject (Hedges v. R. R. Co., 49 N. Y. 223 ). The absolute liability of the carrier continues until the goods have been actually delivered, or notice given, and reasonable time to remove has expired (McKinney v. Jewett, 90 N. Y. 267 ). This obligation rests on the carrier, as carrier, and is part of his original contract as such (Hedges v. R. R. Co., supra; Burnell v. R. R. Co., 45 N. Y. 184 ; Bank of Oswego v. Doyle, 91 Ib. 32 ; McKinney v. Jewett, supra). The consignee, however, on his part is held to prompt and diligent action, in taking possession and removing the goods, and must seek delivery
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and continue until it be complete (Hedges v. R. R. Co., supra).
“In my opinion, the reasonable time for the consignee to remove the tin in the cases at bar, and the liability of the defendants, as carriers, existed and continued during November 28, when the weigher of the consignee was weighing the tin, and during all of November 29, on which day, up to 2 p. I., the carter of Hart & Co. was engaged in hauling the tin, and did in fact haul nearly four tons.
“If, as the carter at one time testified, the sixty-three slabs disappeared from the piles before 2 p. m. on that day, and while he was engaged in hauling the tin no delay was imputable to Hart & Co., and the defendants were liable for the loss as carriers and insurers. If, however, as the weight of evidence shows, the loss was not discovered by the carter until the morning of December 1, then it might have occurred during Thanksgiving day, or at any time after 2 p. m. on November 29, when the carter drew his last load on that day, and the morning of December 1. The fact that the carter did not haul any tin on Thanksgiving day (November 30) becomes, therefore, important. I am unable to see any valid excuse for his failure to haul on that day.' There was no legal prohibition against his doing work on that day. There was access to defendant’s dock, and the weight of authority seems to deny exemption from any legal duty to labor on that day (Ely v. New Haven, &c. Co., 53 Barb. 201 ). There is not sufficient proof of a general custom not to haul on that day.
1 ‘ It seems, however, that even with reasonable diligence and promptitude on the part of the cartman, all the twenty-five tons of tin could not have been hauled from Jersey City to Burling slip, in the city of New York, within two days, at that season, of the year, and with the then existing difficulties to be encountered in travel; so that, even if the cartman had hauled on Thanksgiving day, as well as on the preceding day, at the usual rate of
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work, he could not have prevented the abstraction of the sixty-three slabs by himself removing them from the dock before the morning of December • 1, and their abstraction cannot, therefore, be attributed to his unreasonable delay.
“I do not think that the time occupied in weighing the tin, on November 28, should be charged against the consignee as unnecessary delay, or that the consignee was bound to haul on that day, after the action of the weigher had been reported to the consignee. The examination and weighing of the tin might well be a natural and necessary inquiry, preliminary to the acceptance of it by the consignee.
“It should be remembered that during all this time the tin was not on a public dock, but on defendants’ own private dock, used exclusively by them and for their shipping business, that the tin was in their actual custody and possession, and was removable, and was, in fact, removed therefrom by the carter of Hart & Co., only on receipt given by him to the defendants’ delivery clerk on the dock, for each load, when taken, and as to what was not so taken, it still remained in their possession.
“In my opinion, under all these circumstances, the reasonable time allowed to Hart & Co., to remove the twenty-five tons of tin, had not expired before the morning of December 1, or before the time when the sixty-three slabs were abstracted, and defendants, as carriers and insurers, were liable for the loss of the missing sixty-three slabs of tin.
“ But if I err as to the proper application of the law to the facts bearing on the question of reasonable time to remove the tin, and if, as matter of law, that time had expired before the abstraction of the tin, and the liability of the defendants, as carriers and insurers had ceased, the defendants would not, even then, be necessarily absolved of all responsibility for the loss.
“ Their position would be only altered from that of carriers to that of involuntary bailees for hire and quasi
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warehousemen ; and their responsibility for ordinary care of the tin would arise and continue (Goodwin v. Baltimore, &c. Co., 50 N. Y. 154 ; Bank of Oswego v. Doyle, 91 N. Y. 32 ).
“It should be remarked here that defendants had, under the terms of their bill of lading, a means of relieving themselves of their responsibility as carriers, by warehousing the tin. This they did not do. It was suffered by them to remain on their own dock. It is also worthy of notice that this is not a case of inevitable loss, as where merchandise was destroyed by tire, &c. Here the tin was not destroyed, but was abstracted.
“Where, instead of being landed at a public wharf, goods are placed in depot, warehouse, or other premises of the carrier, they being in his actual custody, he is bound to take ordinary care of them, notwithstanding the unreasonable delay of the consignee in removing them (Goodwin v. Baltimore, &c. Co., 50 N. Y. 154 ). Warehousemen are liable not only for losses occasioned by their negligence, but for those which arise from innocent mistakes in delivery of the goods to persons not entitled to them (Bank of Oswego v. Doyle, 91 N. Y. 42 ). When there is a total, or even a partial failure, on the part of carriers to deliver the bailed goods on demand, the onus of accounting for the default and excusing it, is on the bailee (Canfield v. R. R. Co., 93 N. Y. 532 ).
“Defendants having failed to deliver the tin, or to account for its loss, every presumption is in favor of the consignee’s right to recover for the missing slabs ; and defendants, even as warehousemen, are bound to deliver the goods on demand, and failing to do so, must be regarded as having converted them to their own use, unless they prove that they were lost without any fault on their part (Bank of Oswego v. Doyle, supra).
“The onus of proving absence of any default in the exercise of ordinary care on the part of the carriers, in their altered position as bailees for hire or quasi ware-housemen, rests on them, and in the case at bar they
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have not only not given sufficient evidence to exonerate them from liability, but, on the contrary, there is evidence of frequent violation by them of reasonable rules made by themselves, and of habitual neglect of necessary precautions against loss of the goods in their charge.
‘ ‘ To have allowed the tin to be removed from the dock without receipt being given for it to the delivery clerk might well have led to the loss.
“The testimony given by defendants of- their general care of the dock, by means of locked gates, watchmen, &c., does not supply the want of evidence of due care by them of these missing sixty-three slabs of tin, allotted to the consignees and never delivered to them.
“ Other questions have been presented by the learned counsel on both sides, in their arguments, which I do not regard as essential or requiring special attention. They are sufficiently covered by the findings.
“I hold that, in the absence of sufficient evidence to explain the cause and manner of the loss, or to show that the defendants were free from negligence contributing to it, the defendants, even as bailees for hire, or quasi ware-housemen, were liable to the consignees, although their reasonable time to remove it had expired.
“In the latter as well as in the former aspect of the case, and for the reasons given, I have arrived at the conclusion that the plaintiff should recover as damages the value of the sixty-three slabs of tin which the defendants failed to deliver, with interest, from December 2, 1882.”
From the judgment entered on the decision of the judgb, the defendant appealed.
The most material facts are stated in the opinion of the court.
Butler, Stillman & Hubbard, attorneys, and William Allan Butler, and Wilhelmus Mynderse, of counsel for appellant,
argued: I. The tin was duly delivered, and the relation of the defendant to it, as carrier, had terminated before the sixty-three slabs were stolen, even if the
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rule relating to carriers by rail applies (Hedges v. H. R. R. R. Co., 49 N. Y. 223 ). If Lucius Hart & Co. did not want to take away goods on Thanksgiving Day, they left them on the dock at their own risk. The United States supreme court has held that a discharge on a fast day is a good delivery (Richardson v. Goddard, 23 How. [U. S.] 28). And the fourth of July is not a holiday in the sense of relieving a consignee from the duty of sending for his goods on that day (Ely v. New Haven Steamboat Co., 53 Barb. 207 ).
II. The rule as to the duration of the liability of a carrier by sea is somewhat different from that of a carrier by rail. In the latter case, as already shown, a reasonable time must be allowed to the consignee, after notice of arrival, to remove the goods (Hedges v. H. R. R. R. Co., supra). But the liability of the carrier by sea continues as carrier only till such time, after notice to the consignee, as allows him opportunity to remove the goods, or to put them under proper care or custody. The distinction is carefully drawn by the United States supreme court (Richardson v. Goddard, supra). And the doctrine set forth in that case has been repeatedly affirmed (The Eddy, 5 Wall. 481 ; Ex parte Easton, 5 Otto, 68).
III. As warehouseman or bailee the defendant was responsible for only ordinary care, and negligence must be proved before a recovery can be had (Degrau v. Wilson, 17 Fed. Rep. 698 ; Hathorn v. Ely, 28 N. Y. 78 ; Whitworth v. Erie R. R. 87 Ib. 413 ; Lamb v. The Western R. R. Co., 89 Mass. 98 ; Richardson v. Goddard, 23 How. [U. S.] 28 ; Garside v. The Trent Co., 4 Term Rep. 581).
IV. The bill of lading contains provisions for a more complete protection of the defendant than the defendant would enjoy under a simple contract to transport and deliver. One provision is that the tin was “to be delivered from the ship’s deck, where the shipowners’ responsibility should cease.” As soon as the tin left the deck of the steamer, the liability of the carrier, as such, terminated. We submit that the finding of the trial judge, that
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the defendant is not entitled to the benefit of this provision is error (The Santee, 2 Benedict, 519).
V. Another provision of the bill of lading was one exempting the defendant from liability for robbers, thieves, or loss, whether arising “from the negligence, default or error in judgment of the pilot, master, mariners, engineers, stevedores, agents or other persons in the service of the shipowner, and occurring before, during the voyage, or at the port of discharge.” This clause is fully sustained by the courts of this state (Wilson v. N. Y. C. & H. R. R. R. Co., 97 N. Y. 89 ).
Edward 8. Hatch, attorney and of counsel for respondent,
argued :—I. The plaintiff was entitled to recover damages under the contract, on the ground that the defendant had converted or misappropriated the plaintiff’s tin to its own use, and thereby had broken its contract contained in the bill of lading set out in the complaint and admitted, in the answer (Vyner v. N. Y. &. S. Co., 50 N. Y. 24 ; Price v. O. &. S. R. Co., 50 Ib. 213; Colgate v. Penn. R., 31 Hun, 297 ).
II. Hart &. Co. were not guilty of negligence in the matter of delay in removing the tin from the defendant’s dock. If the alleged negligence on the part of the plaintiff did not contribute in any way to the injury of the defendant in the matter of its negligence, then the defendant is not free from liability to the plaintiff from its (the defendant’s) negligence, on the ground that the plaintiff also was negligent (Zinn v. The N. J. S. Co., 49 N. Y. 442 ). The time within which the consignee, or its assignees, is to be held responsible for the removal of the goods, could not begin until the whole consignment was placed at the disposal of the consignee or its assignees, which was not until the fifth or sixth of December, and the contract contemplated, by some of its clauses therein contained, that the goods could not and should not be removed prior to the whole consignment being ready for removal (Redmond v. Liverpool Co., 46 N. Y. 578 ; Din
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inny v. N. Y. & N. H. R. R. Co., 49 Ib. 546 ; McAndrew v. Whitlock, 52 Ib. 40 ; Condict v. G. T. R. R., 54 Ib. 500; Ostrander v. Brown, 15 Johns. 39 ). No definite rule has been laid down as to what is the reasonable time within which a consignee must remove goods delivered by a common carrier, but the question has been considered in Gleadell v. Thompson (3 J. & S. 232); Place v. U. Ex. Co. (2 Hilt. 19).
III. The defendant was negligent and careless, and on that ground was liable to the plaintiff for the value of the sixty-three slabs (Bank v. Doyle, 91 N. Y. 32 ; Gleadell v. Thompson, 3 J. & S. 232 ; affirmed, 56 N. Y. 194 ; Holsapple v. R. W. & O. R. Co., 86 N. Y. 275 ; Michaels v. N. Y. C. R. R. Co., 30 Ib. 564 ; Condict v. G. P. R. R., 54 Ib. 500 ; Fairfax v. N. Y. C. R. Co., 67 Ib. 11; Guilliaume v. Hamburgh Co., 42 Ib. 212; Burnell v. N. Y. C. R. Co., 45 Ib. 184; McKinney v. Jewett, 90 Ib. 267).
IV. The defendant is not entitled to a reversal on any of the exemptions contained in the bill of lading. It is not understood that the defendant insists on any of those exemptions referred to in its answer other than the one in relation to theft, and it is not understood that that is insisted upon, other than as connected with the question .of negligence already considered in these points. It is to be noted that the bill of lading is not in the ordinary form, but is what is called or termed a “through bill of lading,” which provides, upon its face, and by its terms protection for more persons than the drawers of the bill. The importance of that point is, that all of the clauses behind which the defendant seeks to hide, are evidently intended for marine losses and as protection to the shipowners, as, for instance, the owners of the “York City,” who, under the maritime laws, are more or less liable for the faults of the defendant, or Thompson & Co., its charterers. The words -themselves, as connected together, for instance, the words “pirates, robbers and thieves,” is a combination of words which are recognized as particularly applicable to marine contracts, and as distinguished
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from the words “theft, robbery, larceny,”&c., which are words particularly applicable to contracts other than marine contracts, and which are seldom, if ever, included in marine contracts. This point has been considered in an old case at considerable length (Atlantic I. Co. v. Storrow, 5 Paige, 285). In the same way it is to be noticed that the words “ delivery clerks, receiving clerks, watchmen,” and so on, are not mentioned; but instead thereof are mentioned words like “shipowners, pilot, master, marines, engineers, stevedores, agents, or other persons in the service of the shipowners” (Wells v. Steam N. Co., 8 N. Y. 375 ; Rice v. O. S. Co., 56 Barb. 384 ; Knell v. U. S. & B. S. Co., 1 J. & S. 433). Attention is called to the case of Steinweg v. Erie R. R. ( 43 N. Y. 123 ), for the rule either laid down or at least strongly hinted at, that one cannot contract to excuse one’s self of his own gross negligence, and that as a corporation has no existence except practically in its agents, any agent who has discretionary power to represent the company would be a part of the company, and consequently the corporation could not excuse such agent’s negligence, i. e. —that of the delivery clerk. It is thought the question cannot be disputed in any manner, that the decisions agree in one respect, however they may differ in many others as regards liability of common carriers, i. e.—that the court does not favor exemptions on account of negligence, and that any common carrier defending on that ground must prove his case so clearly as not to leave either the contract or the proof liable to any other construction (Mynard v. S. B. & N. Y. R. Co., 71 N. Y. 180 ; Knell v. U. S. & R. S. Co., 1 J. & 8. 423 ; Wells v. Steam A. Co., 8 N. Y. 375 ; Nicholas v. N. Y. O. & H. R. Co., 89 Ib. 370). Proof of non-delivery, without proof of cause, has been held to be no defense in a case like the one at bar (Magnin v. Dinsmore, 56 N. Y. 168 ).
V. Bemoving the tin from the “York City,” placing it upon the dock, and receiving the order for the delivery of it, was not such a delivery by the defendant to Hart &
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Co. as to relieve the defendant of liability for negligence in the care of the goods.
VI. The onus is upon the defendant to prove, that the loss was by the negligence of the plaintiff or not by the negligence of the defendant, and' that it was a loss that came within the exemptions provided in the bill of lading (Burnell v. N. Y. C. R R., 45 N. Y. 184 ; Fairfax v. N. Y. C. R R, 67 Ib. 11; Knell v. U. S. & R S. Co., 1 J. & S. 423 ; Steers v. L., N. Y. & P. S. Co., 57 N. Y. 1 ).
VII. The defendant is liable to the plaintiffs for the loss of the tin in question, even assuming that the goods were stolen without negligence on the part of the defendant (Thompson v. Liverpool & Gt. Western S. S. Co., 12 J. & S. 407).
VIII. The defendant’s liability to the plaintiffs is .as common carrier (Sherman v. Wells, 28 Barb. 403 ; Sweet v. Barney, 23 N. Y. 335 ; Read v. Spaulding, 5 Bosw. 395 ; affirmed, 30 N. Y. 630 ; Fairfax v. N. Y. C. & H. R. R. Co., 67 Ib. 11; Steers v. L., N. Y. & P. S. Co., 57 Ib. 1; Guilliaume v. H. & A. P. Co., 42 Ib. 212 ; N. Y. C. R. Co. v. Lockwood, 17 Wall. 357 ).
IX. Either Lucius Hart & Co. obtained the right to the reasonable time under the contract, contained in the bill of lading, between the defendant and the consignees, within which to remove the tin from the dock of the defendant by the sale of the tin to them, or else, after such sale, the consignees retained the light to demand the reasonable time from the defendant, within which its vendee might remove the same under the contract contained in the bill of lading (Suydam v. Clark, 2 Sandf. 133 ; Kellogg v. Witherhead, 6 T. & C. 525 ; Carrigan v. Sheffield, 10 Hun, 227 ; Withers v. N. J. S. Co., 48 Barb. 455 ; Bowman v. Teall, 23 Wend. 306 ). And the fact that Lucius Hart & Co. acquired their beneficial interest in this contract subsequent to its being made, does not prevent them from maintaining their right of action under it (N. J. Co. v. Merchants’ Bk., 6 How. [U. S.] 344 ; Merchants’ Bk. v. U. R. & T. Co., 69 N. Y. 373 ; Chandler v.
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Belden, 18 Johns. 157 ; Putnam v. Furnam, 71 N. Y. 590 ; Arnold v. Nichols, 64 Ib. 117). It is maintained as a correct proposition of law on the part of the respondent’s counsel, that a sale of a part of the goods covered by the bill of lading in question, operated as an assignment by law of a beneficial interest therein.

By the Court.

On September 7, 1882, the defendant issued its bill of lading at Singapore, India, to Katz Brothers, whereby it undertook, for value received, to transport one thousand seven hundred and three slabs of tin to London, and thence to the port of New York by a steamer of the Monarch Line. The bill of lading provided, among other things, that the tin was to be delivered from the ship’s deck (where the shipowner’s responsibility shall cease) at the port of New York, and that the contract for transportation should be subject to exceptions for losses arising through pirates, robbers, thieves . . . during the voyage or at the port of discharge.

Another provision of the bill of lading was : “ The goods to be received by the consignee immediately the vessel is ready to discharge, or otherwise they will be landed and stored at the sole expense and risk of the consignee, in the warehouses provided for that purpose, or in the public store, as the collector for the port of New York shall direct, and when deposited in the public store to be subject to rent; and the keys of the warehouse to be delivered to and kept in charge of the officer of customs under the direction of the collector, the collector of the port being hereby authorized to grant a general order for discharging immediately after the entry of the ship.”

The one thousand seven hundred and three slabs of tin arrived in the port of New York on board of the steamer “York City.” Prior to such arrival, Katz Brothers, the shippers, had sold the whole of said tin to Mayer Brothers & Co., of the city of New York, and indorsed the bill of lading over to them, and Mayer

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Brothers & Oo. had sold the one thousand seven hundred and three slabs to various parties. Among these sales was one of a lot of twenty-five tons to Peter Hayden, who, in turn, sold it to Lucius Hart & Co. In the sale of this lot there was no special designation of the tin at the time. The steamer arrived on Saturday, November 25, 1882, and Mayer Brothers & Oo. immediately entered the tin at the custom house and obtained a free permit. On Monday, November 27, Mayer Brothers & Co. paid the freight to Patton, Vickers & Co., the consignees of the steamer, and obtained from the latter the following delivery order, viz. :
“ Monarch Line, 35 Broadway,
“ N. Y. Nov. 27, 1882.
“Deliver to Messrs. Mayer Bros.* goods ex. steamship c York City,’ as follows, when customs permit is in order : HH. 1048 slabs of tin. H. 655 slabs of tin.
“Patton, Vickers & Oo.
“To the Delivery Clerk, Pavonia Ferry, Jersey City.”
This order Mayer Bros. & Co. indorsed as follows : “Deliver against our order only. Mayer Brothers & Oo.” And presented it to the delivery clerk of the steamer.

On the same' day, Messrs. Mayer Brothers & Co. employed Waterbury & Force, weighers, to weigh the whole consignment of tin at the defendant’s wharf—the regular wharf of the Monarch Line—in five ton lots, and mark the lots 1, 2, 3, 4, 5, etc. In the afternoon of that day the weigher attended there at the steamer, and learned that none of the tin had at that time been discharged, but was told by the delivery clerk of the steamer that it would be discharged right off. He did not wait, but he returned to the wharf on the morning of Tuesday, November 28, at about eight o’clock, and then found about thirty tons discharged and in good order. He weighed that, dividing it into six lots of five tons each, and piling each lot by itself. Each slab was marked by a

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stencil number indicating the number of the lot. Thus, each slab in lot 1 was marked 1, each slab in lot 2 was marked 2, etc., etc. The weigher completed his weighing about eleven o’clock, a. m., and about noon sent returns of the weights to Mayer Brothers & Co. One return covering lots 1, 2, 3, 4, 5, was in this form :
“New York, November 28, 1882.
“Return of 498 slabs tin, weighed by order of Messrs. Mayer Bros. & Co.
H.H. H. Ex. ‘York City.’
“Loti. 94—11,258.
“ 2. 94—11,236.
“ 3. 100—11,236.
“ 4. 105—11,238.
“ 5. 105—11,294.
“498 56, 262 lbs.
‘ ‘ WATERBURY & FORCE. ”

At about one o’clock, p. m., of the same day, Mayer Bros. & Co., in fulfillment of their contract with Peter Hayden, sent to the latter the said weigher’s return, together with a bill and a delivery order for the four hundred and ninety-eight slabs of tin thus weighed and set apart, and between one and three o’clock of the same afternoon, Peter Hayden, in fulfillment of his contract with Lucius Hart & Co., indorsed the said delivery order, and delivered it so indorsed, together with the said weigher’s return, to Lucius Hart & Co. During the remainder of that afternoon Lucius Hart & Co. made no effort to take the tin. The next morning, November 29, Lucius Hart & Co. sent two trucks to take the tin, one drawn by two horses, and. one by a single horse. A driver went on each truck, and a third man, William Caughan, an employee of Lucius Hart & Co., and who attended to all the carting to be done for that firm, accompanied them. They arrived at the defendant’s wharf at about eight A. M., and William Caughan then handed to, and left with the custodian of

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the wharf the order for the four hundred and ninety-eight slabs of tin contained in lots 1, 2, 3, 4 and 5, as they had been set apart, and assumed control over the same. The two-horse truck took two loads of tin to the store of Lucius Hart & Co. before noon, each load being about two, and one half tons. The single-horse truck took only one load, consisting of about one ton. After talcing these loads the trucks did not return to the wharf on that day. The next day, November 30, Lucius Hart & Co. did not send to the wharf at all, that day being Thanksgiving Day, though the wharf was open for business, and other merchants sent for and took away goods, and the day was fit and proper for such purpose. On the morning of December 1, sixty-three slabs were missing from the tin which had been set apart as aforesaid and over which William Oaughan had assumed control. The cause of their loss does not appear.

Upon these, facts it must be held that the twenty-five tons, comprising the four hundred and ninety-eight slabs of tin were duly delivered by the ship, and that the relation of the defendant to the said tin, as carrier, under the bill of lading in this case, had terminated before the sixty-three slabs disappeared, and consequently, that the findings of the learned judge below to the contrary are erroneous.

The fact that the plaintiff comes into court as assignee of the claim of Mayer Bros. & Co., of Peter Hayden and of Lucius Hart & Co., for the sixty-three missing slabs, can make no difference.

Mayer Bros. & Co.’s interest in these twenty-five tons of tin, and in the sixty-three slabs which were part of the same, was clearly terminated. They had entered the goods at the custom house, paid the freight, weighed the tin, set it apart, sold it and issued their order for it upon the delivery clerk. This had been accepted by the purchaser, Peter Hayden, in full performance of the contract of sale and delivery by Mayer Bros. & Co. and he had paid Mayer Bros. & Co. for the tin.

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So Peter Hayden’s interest was clearly terminated when he indorsed the papers over to Lucius Hart & Co. He had made his contract of sale to Lucius Hart & Co., price “payable thirty days after delivery on the dock at the port of New York,” and he turned the papers over to Lucius Hart & Co., in fulfillment of his contract of sale.

The plaintiff, therefore, got nothing by his assignment from Mayer Bros. & Co. He got nothing by his assignment from Peter Hayden. And he got nothing by his assignment from Lucius Hart & Co. except a title to the tin, with no rights against the defendant as carrier. They never held the bill of lading, and were never entitled to hold it.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J. and Ingraham, ,., concurred.

Cases cited