Baltimore & Ohio Railroad v. Jones & Laughlin Steel Co. Ex Rel. Crown Cork Co.

Urner, J., delivered the opinion of the court. A carload of tin plate was destroyed, by fire on a pier of the Baltimore and Ohio Railroad Company while awaiting, transfer at Locust Point, Maryland, to a vessel of the Garland Steamship Line. The railroad company is charged with liability in this suit on the theory that its relation to the shipment was still that of carrier at the time of the fire. If that relation had ceased to exist and the railroad company was merely in the position of a warehouseman of the property when the fire occurred, it is not chargeable with any liability on account of the loss, which is conceded to have happened without any negligence on its part.

The shipment originated at Woodlawn, Pennsylvania. It consisted of three hundred and eighty boxes of tin plate contained in oar Mo. 33767 of the Pittsburgh and Labe Erie Railroad Company. It was consigned by Jones & Laughlin Steel Company to the Crown Oort Company, Limited, and was accepted for transportation over the Pittsburgh and Late Erie and the Baltimore and Ohio lines to Locust Point for export to London. ’ The tin plate was received at Woodlawn by the initial carrier on October 9th, 1917, and arrived at Locust Point on the morning of October 22nd. The freight was prepaid “to steamer” and included lighterage.

Upon the bill of lading were noted the numbers of the Government license and Baltimore and Ohio Railroad Company permit authorizing the shipment and necessary to1 be obtained under the war regulations then in force. The permit referred to was issued at the request of the Crown Cort and Seal Company of Baltimore, which was the real purchaser of the tin plate mentioned in the bill of lading. It was stated in the ⁶⁰⁷ permit that the material was intended for delivery to the Garland 'Steamship' Company. On October 12th the Crown Cork and Seal Company, of which the Crown Gork Company, the consignee of the tin plate, is a foreign subsidiary, notified the Baltimore and Ohio Railroad Company that the steamship “Alamance” of the Garland Line was the vessel to which the carload of tin plate was to he delivered.

The ear reached Locust Point in ample time for the transfer of the tin plate to the designated steamer, which sailed on October 29th, but for lack of available cargo space on that vessel the steamship “Rorlina,” of the same line, scheduled to sail three days later, was substituted. Before the shipment could be transferred to the “Rorlina” it was destroyed by the fire already mentioned, which occurred on October 29th. The tin plate was then on the Baltimore and Ohio pier, where it had been unloaded while directions for its delivery to the steamer were being awaited. On the day after the shipment was received at Locust Point the railroad company notified the steamship company of its arrival, and of the fact that it was intended to be forwarded over the latter company’s line.

The railroad company did not inform the shipper or the consignee that the goods had reached its terminal. Because of this omission it is claimed that the railroad company’s liability as carrier had not ended but was subsisting when the property was destroyed. The bill of lading, which was non-negotiablei in form, stipulated as follows: “For loss, damage or delay caused by fire occurring 48 hours (exclusive of legal holidays) after notice of the arrival of the property at destination or at port of export (if intended for export) has been duly sent or given, the carrier’s liability shall be that of warehouseman only.” “Property not removed by the party entitled to receive it within 48 hours (exclusive of legal holidays) after notice of its arrival lias been duly sent or given may be kept in ear, depot or place of delivery of carrier or warehouse, subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only, or may he at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the ⁶⁰⁸ owner and there held at the owner’s risk and without liability on the .part of the carrier, subject to a lien for all freight and other lawful charges, including a reasonable charge for storage.” At common law the notice necessary to' terminate the candor’s liability as insurer, and replace it with the less burdensome liability of a warehouseman, was required to be given' to the shipper or consignee. But under the provisions quoted from the bill of lading in this! case the notice designed to have such an effect had to he given to “the'party entitled'to' receive” the goods to which that instrument refers: This is the. evident meaning of the stipulation that property not removed' within the specified time, by the party entitled to receive it, should he subject only to' the carrier’s responsibility as warehouseman.

The Crown Cork and Seal Company was entitled to receive the tin plate and to direct its movement from the 'railroad terminal to which it' had been brought for export. That corporation had bought the material on its own account,- as appears from the correspondence in the record. It was evidently exercising the rights of ownership when it designated the steamship line and the particular vessel by which the goods were to he transported-to its subsidiary company iu England. For all the purposes of the present inquiry the consignee was the Crown Cork and Seal Company.

S'o- far as the railroad company’s contract of carriage was' concerned the destination was Locust Point, but-it further undertook, for the amount of the prepaid freight, to- convey the goods to- the steamer selected for their sea transportation. When the goods arrived at the point where they were in a position to he transferred to the steamer, as soon as it was ready for* their reception, the defendant, by giving notice of their 'arrival to “the party entitled to receive” the shipment, or its authorized agent, could secure the early termination of the insurer’s liability incident to a common carrier’s undertaking, and assume the more limited responsibility to which a warehouseman is subjeot. The only notice actually given was that communicated to the Q-arland Steamship Company, and unless it had author ⁶⁰⁹ ity to act as the agent of the Crown Cork and Seal Company in the control and disposition., at that time and place, of the goods subsequently destroyed by lire, the railroad company should ho held liable for the loss:, for it would not then he in the position of having’ complied with the condition in the bill of lading upon which its relief from such a liability de1]>ends. If, however, the steamship' company was invested with the authority of such an agency as we have just described, the railroad company ought not to he amenable to this suit, as the loas for which it is brought occurred more than the prescribed period of forty-eight hours after the: notice to the steamship1 company was delivered.

At the trial below, before the court sitting as a jury, instructions were granted, at the request of the plaintiff, that-if the defendant railroad company accepted the carload of tin plate for conveyance to Locust Point and delivery to the Garland Steamship' Company for transportation to England, and that the defendant did not so deliver, hut unloaded the goods on its pier, where, they were destroyed by fire, and that the plaintiff made claim, on account of the loss within six months-, as required by the- hill of lading, as to which there was no dispute, then the plaintiff was entitled to recover the: value of the goods at the time and place of shipment, with interest in the discretion of the court, even though the defendant on October 23rd, 1917, notified the Garland Steamship Company of the arrival of the goods: at Locust- Point. In connection with this instruction another was granted, at tbe plaintiff’s instance:, to the effect that if the Crown Cork Company, Ltd., directed the defendant to deliver the carload of tin plate to the steamer Alamance of the Garland Steamship Company, and that company refused to receive the goods on the vessel so designated, then the defendant was hound to give prompt notice of such refusal to the.- shipper or consignee-, and if the court, sitting asi a jury, found that such notice was practicable but was not given, then the plaintiff was entitled to recover. ⁶¹⁰ By the instructions' just summarized the theory that the notice given the steamship- company might have been effective, after the lapse of forty-eight hours, to reduce the defendant’s liability to that of warehouseman, is wholly disregarded. It was assumed that there was no evidence legally sufficient to prove that the steamship- company was the consignee’s duly authorized agent. The omission of the defendant to notify the shipper or the consignee itself was treated as being fatal to the claim that the carrier’s liability had ended.

On the other hand, the defendant’s prayers* which the trial court rejected, were founded in part on the assumption that the evidence conclusively proved the steamship- company to he the proper recipient of the- notice which" was designed by the bill of lading to- bave the- effect of terminating the defendant’s responsibility as carrier after the expiration of the stated period." The verdict and judgment were in favor of the plaintiff fo-r the sum of $9,756.62, being the value of the tin plate with interest." The carload of material with which we are concerned in this ease was one of a series of similar shipments