United Fruit Co. v. New York & Baltimore Transportation Co.

McSherry, C. J., delivered the opinion of the Court. This suit was brought by the appellant, the United Fruit Company, against the appellee, the New York and Bal ⁵⁶⁹ timore. Transportation Company, a common carrier by water, to recover the value of certain goods and merchandise shipped from New York to the appellant in Baltimore in one of the steamers of the appellee, and which after reaching the appellee’s dock in Baltimore and after being unloaded thereon from the steamer and after being stored on the appellee’s wharf were destroyed in the great fire of February, 1904. Part of the goods were shipped under bills of lading which contained conditions limiting the carrier’s liability and which are inserted in the uniform bill of lading.

As no claim is made that the value of those goods thus shipped can be recovered in this action no allusion need be made to those conditions. The remainder of the goods were shipped on simple receipts and it is in respect of these latter goods that the questions in this case arise. The steamer reached Union Dock, the Baltimore terminus of the appellee’s line, at half past six on the morning of Friday, February the fifth, 1904. The goods were not delivered to the consignee and as their destruction by fire whilst in the possession of the appellee is the ground of the pending action, it becomes necessary to inquire and determine in what capacity they were held by the appellee at the time of their destruction and why they were not delivered to the appellant upon their arrival.

To answer these inquiries intelligently a somewhat detailed statement of the testimony must now be made. There were but four witnesses examined—two on each side. The first witness called was C. C. Buckman and his testimony shows nothing of consequence beyond the fact that as manager of the appellant company he knew of the arrival of the goods, but not from personal knowledge; and the further fact that it was the custom of the appellee to deliver goods to the appellant company at its place of business at Bowley’s wharf. The appellant then produced the witness Irving K. Ward, who testified that at the time of the fire he was acting auditor of the appellant; that the appellee always made free delivery to the appellant company of goods consigned to the appellant in Baltimore.

That “the representative of the defendant (appellee) came to the office of the plaintiff (appellant) and saw witness ⁵⁷⁰ in person, and stated that he had a shipment of plaintiff’s (appellant’s) that had arrived on his boat, and he wanted to know when he should make delivery. Witness thinks this was on Friday, the day the boat arrived. And as these goods were to be shipped to our people in' Cuba, and not having a steamer to sail before Tuesday I told him that if he could arrange to hold those goods until Tuesday it would be advantageous to us, and he said he would agree to hold those goods until Tuesday, provided we would pay the tugboat and scowage charge from the New York andBaltimoreTransportation wharf to Bowley’s wharf as the goods had been shipped to be delivered at Bowley’s wharf. He agreed, in consideration of the fact that we paid the expenses for bringing them around there, that he would hold them, because, as he stated, they were in a boat and to take them out and put them on a scow he could send them around to us very easily, but if he was to keep them there, there would be a double expense, and if we agree to pay the tugboat charge of the time he would agree to keep the goods, which was done.” The Judge then asked the witness, “Do I understand you to say that he promised'to deliver them on Friday?” and the answer was: “Yes sir.” “And you agreed to pay the charges.” “Yes sir.” The witness continued: “The ordinary method of making delivery was to bring the goods by drays from the New York Line to Bowley’s wharf. * * * The fire destroyed the goods on Sunday or Monday so they were never delivered. * * * In consequence of the making of this agreement the goods were not delivered either on Friday or Saturday.” On cross-examination the witness was asked the following questions and gave the following answers: “When you were notified that these goods had arrived, you say you were not ready to receive them?” “No sir.” “Was anything said to you or by you about whose risk they were at?” And he replied: “I do not recollect anything about a risk being mentioned at all.” The appellee (defendant) then proved by George R. Brown that he was at the time of the fire one of the delivery clerks of the appellee, and had been for twenty years.

The goods ⁵⁷¹ in controversy reached the appellee’s (defendant’s) wharf about half past six Friday morning February fifth, 1904. Witness gave appellant (plaintiff) written notice, “and personally by phone told appellant they were ready to deliver the goods. Reply was that plaintiff would not be ready before Tuesday. Told plaintiff (appellant) they would deliver that morning if plaintiff could take them.

Goods were then on ship.” He was then asked : “When he refused to accept them, what did you then say ?” and he replied : “I told him they were entirely at his risk.” If the appellant had accepted delivery the goods would have been taken from the steamer to the scow. They unloaded the goods and put them on appellee’s pier. The ship had to sail next day. The goods were properly stored on the pier, in a covered shed, and were then ready for consignee at any time he wanted them.

The lighters in which the delivery was to be made are not owned, run or operated by the appellee but by the Atlantic Transport Company. The witness further proved that it was the custom of the appellee to deliver free, first, second-and third class freight ; but that if fourth, fifth or sixth class freight was delivered the appellee charged for it. In all car lots, whether it is free delivery or not the appellee agreed to deliver all car load freight to consignee’s pier if he has a water front whether it is fourth, fifth, sixth, or first, second or third class. The appellee further proved by William Riley that in February, 1904, he was notifying clerk of the appellee Company ; that his duties were to make out notices and take them around and notify people that goods had arrived on appellee’s steamers.

He took notices to the United Fruit Company on February the fifth of the arrival of all the goods covered by the freight bills offered in evidence, and delivered them at the appellant’s office. The blank form of notices which was filled out in each case was as follows : “New York and Baltimore Transportation Line, Baltimore -- 190—. Landed this day at the Bay Line Wharf, foot Union Dock the following goods, subject to the order and at the risk of-who-hereby notified to remove the same without delay, as all property is ⁵⁷² at risk of the owner or consignee after landing on wharf.” He delivered the notices about nine or ten o’clock in the morning. These notices applied to fourth, fifth and sixth classes of goods only.

In rebuttal the appellant recalled Irving K. Ward who deposed that he did not have the conversation- with Mr. Brown testified to by the latter as a telephone communication. That no 'other notification of arrival of these goods reached him except the written notice and the verbal conversation that has b'een testified to. The following facts are established by the testimony and established conclusively and without contradiction : That the goods in question reached the appellee’s wharf early on the morning of February the fifth : That the appellee was then ready and willing and offered to deliver them to the consignee according to its accustomed mode of delivery : That the consignee received timely notice on the morning of the fifth of February that the goods had arrived : That it was due to consignee’s express request that the goods be held by the carrier that they were not delivered on that day : That the appellee company agreed to hold them until Tuesday at the risk of the appellant, and the latter agreed to defray the expense of transferring them from the appellee’s wharf to the appellant’s wharf in the scows and by the tugs of the Atlantic Transport Company : - That the goods were destroyed by fire on February seventh or eighth without any fault or negligence on the part of the appellee ; and that but for the declension of the appellant to accept the goods on the fifth of February they would not have been burned whilst in the possession of the appellee. These facts show why the goods were not delivered to the consignee upon their arrival ; and the remaining inquiry is : in 'fftvak.-capacity do these facts prove that the goods were held by the appellee at the time of their destruction by fire ?

And that is the,next inquiry because its solution will determine the rule of law by which the liability of the appellee is to be measured. We all know — it is a familiar doctrine — that a common ⁵⁷³ carrier of goods is an insurer and is responsible for all losses except those occasioned by the Act of God or public enemies, unless there is some valid contractual restriction of that liability. If then the' goods in controversy — those not covered by the conditions in the uniform bill of lading —■ were in the custody of the appellee in its capacity as a common carrier; it is liable to the consignee for their value. On the other hand a warehouseman being a mere bailee, is bound only to ordinary diligence and of course is responsible for losses caused by ordinary negligence.

If then, the goods in question were in the custody of the appellee as warehouseman there is no pretence that it was guilty of any negligence whatever and the consignee would have no cause of action against it for the loss occasioned by the fire. When the goods were received by the New York and Baltimore Transportation Company in New York for the shipment to Baltimore the duties and resposibilities of a common carrier of freight were at once assumed by it. Now, when did those duties and responsibilities terminate? and when, if at all, did the less rigorous obligations of a warehouseman begin? Laying aside for the moment all reference to the special facts of this case and all considerations of custom it will be pertinent to determine, first, what is the general rule of law with regard to the termination of the carrier’s liability, as carrier, and the inception of its liability as a warehouseman; and, then, the circumstances of this case will be considered in connection with that general rule.

There is a decided conflict in the authorities as to when the carrier’s liablity as such ceases, and its liability as warehouseman only begins. One class of cases adopts what is known as the Massachusetts rule, whilst another class of cases follows what is called the New Hampshire doctrine. The Massachusetts rule is this: When the transit is ended, and the carrier has placed the goods in his warehouse to await the delivery to the consignee, his liability as carrier is ended also, though no notice is given to the consignee, and he is responsible as warehouseman only. Thomas v. Boston & P. R. Co., 10 Met. 472 , approved in Norway ⁵⁷⁴ Plains Co. v. Boston & M. R. Co., 1 Gray, 263 .

This rule has been adopted or followed in Georgia, Illinois, Indiana, Iowa, Missouri, North Carolina, New Jersey and Pennsylvania. The New Hampshire doctrine holds that the carrier’s liability as insurer continues after the arrival of the goods at their destination and until the consignee has had a reasonable time in which to call for and remove them; and that the carrier is bound to notify the consignee of the arrival of the goods, and that the reasonable time does not begin to run until such notice, where practicable, has been given. Moses v. Boston & M. R. Co., 32 N. H. 523, where it was said-in commenting on the rule laid down in Norway Plains Co. v. Boston & M. R. Co., supra, that the Massachusetts rule was of “a plain, precise and practical character,” but that, “by it the salutary and approved principles of the common law are sacrificed to considerations of convenience and expediency.” The lead of New Hampshire has been followed by the Courts of Alabama, California, Connecticut, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Nebraska, New York, Ohio, Vermont and Texas.In the last named State as well as in some of the others the rule is prescribed by statute. Rev. Stat., Tex., Art. 282.

See note to East Tenn., Virg. & Geo. R. Co. v Kelly, 17 L. R. A. 691, where the two rules are discussed and numerous cases are cited. These differences of opinion had their origin in the rule of the common law requiring actual delivery to the consignee by the carrier. A modification of the rule was made necessary on account of the impracticability of actual delivery by railroad companies or carriers by water, and notice to the consignee and a deposit of the goods in the carrier’s warehouse were made a substitute for actual delivery.

The cases adopting the Massachusetts doctrine proceed on the theory that a deposit of the goods in the carrier’s warehouse is a quasi delivery to the consignee’s agent, and absolves the carrier from all further liability as to the goods, except such as is assumed by its new relation; such a delivery to itself as the consignee’s warehouseman being in lieu of the actual delivery required by the common law. The opposing authorities consider that the ⁵⁷⁵ changed character of the carrier which renders actual delivery impracticable merely relieves it from such delivery; that it still remains liable until the consignee receives his goods, unless he fails to call for them within a reasonable time. 5 Am. & Eng. Ency. L., 268.

The doctrine of the English cases is substantially the same as the New Hampshire doctrine. The consignee of goods shipped by railway is entitled to a’reasonable time, after the goods have arrived at their destination, within which to take them away, and during such time the goods are in the hands of the railway as carrier and subject to all the liabilities which attach to that character. But when such reasonable time has lapsed the company becomes liable as warehouseman merely. Chapman v. Great West.

Ry. Co., 5 Q. B. Div. 278. In this case Cockburn, C. J., said: “The contract of the carrier being not only to carry, but also to