Where goods are carried by connecting railways, as between
intermediate carriers, the duty of the one in possession at the end
of his route is to deliver the goods to the succeeding carrier, or
notify him of their arrival, and the former is not relieved of
responsibility by unloading the goods at the end of his route and
storing them in his warehouse without delivery or notice to or any
attempt to deliver to his successor.
In this case, it cannot be claimed that the defendant had either
actually or constructively delivered the cotton to the steamship
company at the time of the fire.
If there be any doubt from the language used in a bill of lading
as to its proper meaning or construction, the words should be
construed most strongly against the issuer of the bill.
In such a bill, if there be any doubt arising from the language
used as to its proper meaning and construction, the words should be
construed most strongly against the companies.
It cannot reasonably be said that, within the meaning of this
contract, the property awaits further conveyance the moment it has
been unloaded from the cars.
The defendant, at the time of the fire, was under obligation as
a common carrier, and was liable for the destruction of the
cotton.
This action was brought in the Circuit Court of the United
States for the Southern District of New York by the plaintiffs, who
are defendants in error here and are residents of Liverpool,
England, to recover the value of some two hundred bales of cotton
destroyed by fire at Westwego, Louisiana, opposite the City of New
Orleans, November 12, 1894, at a pier on the west bank of the
Mississippi River owned by the plaintiff in error. This is the same
fire which is mentioned in
Texas & Pacific Railway Company
v. Clayton, 173 U. S. 348.
Upon the first trial, the court directed a verdict in favor of the
defendant, but the judgment entered thereon was reversed by the
circuit court of appeals (98 F. 533), and a new trial
Page 183 U. S. 622
granted. Upon the second trial, the court, following the opinion
of the circuit court of appeals, directed a verdict for the
plaintiffs for the value of the cotton, and, the judgment entered
upon that verdict having been affirmed by the circuit court of
appeals on the authority of its former opinion, 99 F. 1006, the
railway company brings the case here by writ of error. The defense
of the company is based upon a clause in the bill of lading which
will be set out hereafter.
The cotton had been shipped at Temple, in the State of Texas, on
the Missouri, Kansas & Texas Railway, to be carried over its
road and the defendant's road to New Orleans, and from that port to
Bremen. It arrived at New Orleans at the pier of the railway
company November 6, 1894. One hundred and sixty bales were unloaded
on November 7, and the balance soon thereafter, but on what day is
not certain. One hundred and twenty bales were unloaded and placed
at one point, and two different lots of forty bales each were
deposited at other points, thus leaving the cotton at three
different points on the pier of the railway company. At this time,
the pier was quite full, there being over twenty thousand bales
deposited upon it and some eight thousand bales in cars waiting to
be unloaded. The pier was built, owned, and in the exclusive
possession of the railway company. The bill of lading, which was
issued at Temple, in the State of Texas, by the Missouri, Kansas
& Texas Railway, expressed on its face to be on behalf of that
company and also the defendant company and the steamship company.
It was an elaborate document, and purported to be "an export bill
of lading approved by the permanent committee on uniform bill of
lading." It acknowledged the receipt of the cotton consigned as
marked, and to be carried to the port of New Orleans, Louisiana,
and thence by the Elder, Dempster & Company's steamship line to
the port of Bremen, Germany. It had conditions which are stated to
be:
"(1) With respect to the service until delivery at the port of
New Orleans, Louisiana."
"(2) With respect to the service after delivery at the port of
New Orleans, Louisiana."
There are twelve clauses relating to the service until
delivery
Page 183 U. S. 623
and fifteen clauses relating specifically to the service after
delivery at the port of New Orleans. Those clauses which are
specifically referred to in this case are numbered 3, 11, and 12 in
the bill of lading. They read as follows:
"3. No carrier shall be liable for loss or damage not occurring
on its own road or its portion of the through route, nor after said
property is ready for delivery to the next carrier or to consignee.
. . ."
"11. No carrier shall be liable for delay, nor in any other
respect than as warehousemen, while the said property awaits
further conveyance, and in case the whole or any part of the
property specified herein be prevented by any cause from going from
said port in the first steamer of the ocean line above stated
leaving after the arrival of such property at said port, the
carrier hereunder then in possession is at liberty to forward said
property by succeeding steamer of said line, or, if deemed
necessary, by any other steamer."
"12. This contract is executed and accomplished, and all
liability hereunder terminates, on the delivery of the said
property to the steamship, her master, agent, or servants, or to
the steamship company, or on the steamship pier at the said port,
and the inland freight charges shall be a first lien due and
payable by the steamship company."
The usual method of handling cotton upon its arrival at the pier
of the company at Westwego, Louisiana, is stated, as both counsel
in this case agree, with substantial accuracy in
Texas &
Pacific Railway Company v. Clayton, 173 U.
S. 348,
173 U. S. 352,
as follows:
"The mode in which the railway company and the steamship company
transacted business was as follows: upon the shipment of cotton,
bills of lading would be issued in Texas to the shipper. Thereupon,
the cotton would be loaded in the cars of the railway company, and
a waybill indicating the number and initial of the car, the number
of the bill of lading, the date of shipment, the number of bales of
cotton, the consignor, the consignee, the date of the bill of
lading, the number of bales forwarded on that particular waybill,
the marks of the cotton, the weight, rate, freights, amount
prepaid, etc., would be given to
Page 183 U. S. 624
the conductor of the train bringing the car to Westwego. Upon
the receipt of the waybill and car at Westwego, a 'skeleton' would
be made out by the clerks at that place for the purpose of
unloading the car properly. It contained the essential items of
information covered by the waybill, and had also the date of the
making of the skeleton. When this skeleton had thus been made out
and the car had been pushed in on the side track in the rear of the
wharf, it would be taken by a clerk known as a 'check clerk,' and
with a gang of laborers, who actually handled the cotton and were
employed by the railway company, the car would be opened, and as
the cotton was taken from the car bale by bale, the marks would be
examined to see that they corresponded with the items on the
skeleton, and the same were then checked. The cotton thus taken
from the car was deposited at a place on the wharf designated by
the check clerk, and it would remain there until the steamship
company came and took it away. After the checking of the cotton in
this way to ascertain that the amounts, marks, and general
information of the waybill were correct, the skeleton would be
transmitted to the general office of the Texas & Pacific
Railway Company in New Orleans, which thereupon would make out what
was designated as a 'transfer sheet' that contained substantially
the information contained in the waybill, and which, being at once
transmitted to the steamship company or its agents, was a
notification understood by the steamship company's agents that
cotton for their line was on the wharf at Westwego ready for them
to come and take away. Upon the receipt of these transfer sheets,
the steamship company would collate the transfers relating to such
cotton as was destined by them for a particular vessel, advise the
railway company with the return of the transfers that this cotton
would be taken by the vessel named, and would thereupon send the
vessel with their stevedores to the wharf at Westwego. The clerk at
Westwego would go around the wharf and, by the aid of the transfers
returned from the steamship agents, point out to the master or mate
of the vessel, or the one in charge of the loading, the particular
lots of cotton named in the transfers and designated for his
vessel, and the stevedores and their helpers would thereupon take
the cotton
Page 183 U. S. 625
and put it on board the ship. In connection with the loading
upon the vessel, or after the cotton was pointed out in lots, the
master or mate would sign a mate's receipt for this cotton. The
stevedores and all men employed in loading the vessel were wholly
in the employ of the steamship company. The time of coming to take
cotton from the wharf was entirely in the control of the steamship
company. They sent for it as soon as they were ready."
At the time of the fire, it is conceded that no transfer or
skeleton sheets had been sent to the steamship company, or notice
given it of the arrival of this cotton at the pier of the railway
company.
MR. JUSTICE Peckham, after making the foregoing statement of
facts, delivered the opinion of the Court.
In this case, there had been no delivery of the cotton by the
railway company prior to its destruction by fire. The cotton had
arrived at the pier of the railway company, but no notification of
its arrival had been given to the steamship company, nor was it in
fact in the possession of, nor had it been delivered to, the latter
company. It was still under the absolute control and in the
possession of the railway company, and nothing had been done to
terminate its common law liability at the time the fire
occurred.
In
Myrick v. Michigan Central Railroad Company,
107 U. S. 102, Mr.
Justice Field, delivering the opinion of the Court, and speaking of
the duty of a connecting carrier at page
107 U. S. 106,
said:
"If the road of the company connects with other roads, and goods
are received for transportation beyond the termination of its own
line, there is superadded to its duty as a common carrier that of a
forwarder by the connecting line -- that is, to
Page 183 U. S. 626
deliver safely the goods to such line -- the next carrier on the
route beyond."
As between intermediate carriers, the duty of the one in
possession at the end of his route is to deliver the goods to the
succeeding carrier or notify him of their arrival, and the former
is not relieved of responsibility by unloading the goods at the end
of his route and storing them in his warehouse, without delivery or
notice to or any attempt to deliver to his successor.
McDonald
v. Western Railroad Company, 34 N.Y. 497;
Congdon v.
Marquette, H. & O. Railroad Company, 55 Mich. 218. In the
latter case, it is held that the duty of the connecting carrier is
not discharged until it has been imposed upon the succeeding
carrier, and this is not done until there is delivery of the goods,
or at least until there is such a notification to the succeeding
carrier as according to the course of business is equivalent to a
tender of delivery.
Within these cases, it cannot be claimed that this defendant had
either actually or constructively delivered the cotton to the
steamship company at the time of the fire. The defendant is
compelled, therefore, to have recourse to the clauses in the bill
of lading in its attempt to rid itself of liability consequent upon
the destruction of the cotton by a fire while at its pier and in
its possession. The bill of lading itself is an elaborate document,
bearing on its face evidences of care and deliberation in the
formation of the conditions of the liability of the companies
issuing it. The language is chosen by the companies for the
purpose, among others, of limiting and diminishing their common law
liabilities, and if there be any doubt arising from the language
used as to its proper meaning or construction, the words should be
construed most strongly against the companies, because their
officers or agents prepared the instrument, and as the court is to
interpret such language, it is, as stated by MR. JUSTICE HARLAN, in
delivering the opinion of the Court in
National Bank v.
Insurance Company, 95 U. S. 673,
95 U. S. 679, "both
reasonable and just that its own words should be construed most
strongly against itself." To the same effect is
London
Assurance &c. v. Companhia &c., 167 U.
S. 149,
167 U. S. 159,
and
Queen of the Pacific, 180 U. S.
49,
180 U. S.
52.
Page 183 U. S. 627
We come, then, to an examination of the bill of lading for the
purpose of determining whether the railway company has been
exempted from liability by any of its provisions.
We do not understand it is contended that either clause 3 or 12
applies, because, as is conceded, there was never any notification
given the steamship company of the arrival of this cotton. Without
that notification, counsel does not contend that either of those
clauses applies. The argument at the bar was devoted to maintaining
the proposition that the railway company was exempted under clause
11, and the other clauses in the bill of lading were referred to
for the purpose of giving point to that contention. It was urged at
the bar that, under the eleventh clause, the question of
notification was immaterial because, although a notification had
not been given, yet the cotton, upon its arrival at the pier and
after it had been unloaded from the cars, "awaited further
conveyance" within the meaning of the eleventh clause, and, while
awaiting further conveyance the carrier, was, by the express terms
of that clause, relieved from liability otherwise than as
warehouseman. In other words, that the carrier, upon the arrival of
the cotton and unloading it at the pier, and without giving any
notification of its arrival, ceased to be a carrier and became
liable only for negligence which might cause the loss of the
property, and, there being no negligence proved in this case, the
carrier was not liable.
It was argued that clauses 3 and 12 were intended to cover such
a case as would have existed in the one now before us had notice
been given to the steamship company of the arrival of the cotton at
Westwego, such notice being understood by the steamship company as
a request to come and take away the cotton, and in holding, as the
court below did, that notification was necessary before the
eleventh clause could apply, that clause was thereby deprived of
any separate effect, because after notification the third or the
twelfth clause would exempt the carrier, and therefore some further
or other meaning must be given the eleventh clause, so that it may
operate in a case where no other clause would be available.
Upon this subject, Circuit Judge Shipman, in the court below,
said:
Page 183 U. S. 628
"It is not claimed that the facts bring the carrier's liability
within clause 3 of the bill of lading, which says that the
liability shall end after the property 'is ready for delivery' to
the next carrier, for it is conceded that the goods are not
awaiting delivery before any notification of their arrival to the
connecting carrier.
McKinney v. Jewett, 90 N.Y. 267. It
is, however, insisted that the fair construction of clause 11 is
that, when the act of transportation of the cotton to the wharf at
Westwego has been accomplished, and it has been stacked on the
wharf, and 'is awaiting further action in the way of notification
and advice to the succeeding carrier,' it awaits further
conveyance. By this construction, the parties substituted an
immediate cessation of the liability of a carrier and the
assumption of the liability of a warehouseman for the liability
imposed by the common law, and doubtless they were at liberty to
make a contract of limitation which will be enforced if the
language of the bill of lading clearly indicates that such was
their intention. In order to justify the defendant's construction,
the claimed extent of the departure from the implied contract of
the common law must clearly appear in the language which is used in
the special contract. The clause 'no carrier shall be liable for
delay,' when applied to the facts in this case, meant that the
defendant should not be liable for the delay of the steamship
company, but delay would not occur until it knew or had heard of
the time of arrival of the cotton. The same idea of notification to
the connecting line must also run through the entire paragraph,
and, while the term 'awaiting further conveyance' literally means
'awaiting the time when the next carrier shall take the property in
hand,' it seems improbable that it was the intent of the language
that the liability of the carrier should terminate upon the deposit
of the property upon the wharf. The language is too indefinite to
support the conclusion that notice to the connecting line was not a
prerequisite to the change of liability to that of a warehouseman.
It may well be that such change would take place when the property
was awaiting conveyance by the connecting line which had been
notified to receive and convey, but until then, it is not awaiting
conveyance -- it is awaiting the action of the first carrier.
Page 183 U. S. 629
The term must mean awaiting conveyance by the person upon whom
the duty of conveyance devolved, and no such duty devolved until
notice of the arrival of the property had been given."
We agree with the views of the court below, as expressed by
Judge Shipman. We do not think that the property can be said to
await further conveyance the moment it is dragged upon the pier of
the railway company and unloaded from its cars, and before any
notification is given to the steamship company that the cotton has
arrived and awaits transportation by ship. In one sense, it might
be said that property awaited further conveyance if anywhere along
the line of the railway company an engine of the train should break
down and the train be brought to a standstill for several hours
awaiting a new engine. In such case, the cotton would not have
arrived at the termination of the road of the railway company, and
in one sense it would certainly be awaiting further conveyance,
because it had not arrived at the end of the route; but no one
would suppose for a moment that, during the time that the train was
thus at a standstill, the eleventh clause of the bill of lading
would be applicable. No court would give such a construction to the
clause as would exempt the company under the circumstances
stated.
We are then to look for some fair and reasonable meaning to be
given to the term, and we think that the court below has given such
meaning to it. It cannot reasonably be said that, within the
meaning of that clause, the property awaits further conveyance the
moment it has been unloaded from the cars onto the pier of the
defendant. As is stated by the circuit court, at that time, the
property awaits the further action of the defendant, and does not
await further conveyance until it has become the duty of the
succeeding carrier to take it further after notification that it
has arrived and awaits delivery to it. After that time, it may be
said to await further conveyance, but up to that time, it awaits
the further action of the railway company.
This meaning of the clause is not altered even if the language
used in other clauses might also grant exemption upon the same
Page 183 U. S. 630
facts. We are not for that reason bound to find some other and
different meaning for the eleventh clause than such as we think is
obvious and plain upon its face. The various propositions mentioned
in these different clauses, and the many contingencies provided for
therein under which the company might claim exemption, render it
not surprising that the same ground of exemption should possibly be
covered by more than one provision in the bill, or that, in other
words, the defendant should, upon the same facts, be exempt under
more than one of its various and perhaps somewhat indefinite
clauses. No rule of construction binds us to find some hidden or
obscure meaning for a particular clause, because the simple and
plain one which is seen upon its face provides for contingencies
which may be also provided for in another clause of the same
bill.
Reference was made in the opinion of the court below, and also
upon the argument in this Court, to the case of
McKinney v.
Jewett, 90 N.Y. 267, in relation to a delivery of goods at the
termination of the carriage, where the meaning of the phrase
"awaiting delivery" was under consideration, the court holding that
the phrase implied not only the arrival of the goods, but the
completion of whatever on the part of the carrier is necessary to
be done to leave the risk of further delay upon the consignee; that
the goods were "awaiting delivery" only after the duty of the
common carrier is done, and he is entitled to remain passive
awaiting the action of the consignee.
It was objected on the argument at the bar that the case was not
in point, because of the distinction between awaiting delivery and
awaiting carriage, and it is urged that this difference is
substantial; that conveyance and delivery are different acts, and
relate to different parts of the service; that there could be no
delivery to the consignee under the New York case until there had
been notice in some form to the consignee, while the element of
notice had no connection with the act of conveyance of the cotton,
which might be entirely complete regardless of notice. The two
cases differ in that the New York case, as counsel says, relates to
a delivery at the end of the route, and the case at bar relates to
goods awaiting conveyance by a connecting carrier; but in both, the
question arises as to the meaning
Page 183 U. S. 631
of the term "await," and the New York case holds that goods do
not await delivery, within the meaning of that term as used in the
bill of lading, until notice of their arrival has been given the
consignee, and it seems to us that the same reasoning holds here,
and that goods are not awaiting further conveyance by a connecting
carrier until the preceding carrier has given him notice of their
existence at the place where further conveyance is to be continued.
We do not dispute that there is a distinction between the position
of goods awaiting delivery and those awaiting further conveyance,
and the fact of such distinction is recognized in
Railroad
Company v. Manufacturing Company, 16 Wall. 318,
83 U. S. 327,
and it is therein stated that there is a clear distinction between
property in a state to be delivered free to the consignee on demand
and property on its way to a distant point to be taken thence by a
connecting carrier. In the former case, it might be said to be
awaiting delivery, in the latter, to be awaiting transportation.
But the analogy between goods awaiting delivery at the end of the
route and goods awaiting further conveyance by a connecting
carrier, so far as the requisite of notice in each case is
concerned, we think exists, and should be recognized.
There having been in this case no notification to the steamship
company, without which clauses 3 and 12 do not apply, and we being
of the opinion that clause 11 has also no application without
notification to the steamship company, it follows that the
exemption claimed under the bill of lading is not sustained; that
the defendant, at the time of the fire, was under obligation as a
common carrier, and liable for the destruction of the cotton, and
that the judgment in favor of the plaintiff below was right, and
must be
Affirmed.
