it had been actually delivered before the loss, the railway company would not have been responsible therefor. The defendant's claim, if allowed, would leave the shipper without recourse for loss by fire after the notification had been given to the steamship company and before the delivery of the cotton had been made to it, because the railway company would be under no liability for the loss of the cotton by fire, excepting by reason of its own negligence, and the insurance of the cotton, while in the possession of the steamship hip company, would not attach, and so the shipper would be without any adequate protection during that time. True, he might obtain special insurance during this intermediate period, but it would add to the expense of the transit which under the terms of the bill he would naturally not feel called upon to make, and it would be inconvenient and troublesome to do it, and the court ought not to unduly limit the plain language of the clause for the purpose of thereby enabling the company to escape a liability cast upon it by the common law, and which it voluntarily assumed.

on the proper construction of the sentence | carrier within the meaning of the 3d clause, in clause 4 in relation to the liability of the or was awaiting further conveyance within defendant for loss of cotton by fire. The the meaning of the 11th clause; but that if bill of lading was prepared for a contract in regard to property of any kind, and in clause 1 the carrier was exempted from liability from loss by fire except through his negligence. The part of the sentence in clause 4, 'Cotton is excepted from any clause herein on the subject of fire,' probably refers only to clauses wherein fire is mentioned; but the concluding part of the sentence, 'and the carrier shall be liable as at [636]common law for loss or damage *of cotton by fire,' has a wider sweep, and means that the carrier, notwithstanding limitations of its common-law liability which are provided in the bill of lading, retains such liability in regard to damage to cotton by fire. The clause as a whole intended to leave and did leave unaltered the implied liability of the carrier for loss to cotton by fire. The limitations which the parties did permit were contained in clauses 3 and 11, which said that the carrier should not be liable for damage after a readiness to deliver, or otherwise than as a warehouseman after the property waited further conveyance, Whatever may be the extent of these limitations, they were to a certain degree modifications of the common-law liability of the first carrier, but its liability at common law for loss to cotton by fire remained intact. The request of the defendant to go to the jury upon the question of delivery of the cotton was properly refused. There was no evidence of a delivery. The cotton was never in the actual or constructive possession of either of the steamship companies, and neither was ready to take it from the defendant's possession; and therefore clause 12 has no bearing upon the question of the defendant's liability."

We think this view of the circuit court of appeals is the correct one, and that under the wording of the 4th clause in the bill of lading the defendant was properly held liable. The first part of that clause in terms takes cotton out of any clause on the subject of fire, and as if such language might possibly render it doubtful as to what the status of cotton would be by merely excepting it from any clause on the subject of fire contained in the bill of lading, it is further provided that "the carrier shall be liable as at common law for loss or damage of cotton by fire." The whole is a special and specific provision which applies to cotton alone and to the loss of cotton by fire. The other provisions apply generally to all property, whatever its character and wherever taken. In other words, these other clauses are of a general nature, while the 4th clause refers to cotton alone, and to the specific cause of the loss, viz., by fire. We are of opinion that the specific clause takes effect to the exclusion of the general clauses containing matters of general exemption, and that therefore the carrier remains liable as at [637] common *law for a loss of cotton by fire while in the possession of the carrier, although it was ready for delivery to the next

As cotton was the subject of the special provision, its language should be given full sway, and should not be curtailed by other provisions in other clauses of a general nature referring to all kinds of property.

to

We are also of opinion that there was nothing to go to the jury upon the question of a delivery of this cotton to the steamship company under the 12th clause of the bill of lading. It may be assumed that the pier of the railway company was the place understood and agreed upon between that company and the steamship company make delivery, when it was made, of the cotton to be thereafter carried by the steamship company; but upon the uncontradicted evidence in this case we are of opinion that the simple arrival of the cotton at the pier, and notice thereof given to the steamship company by means of the "transfer sheets" spoken of in the other case, did not in and of *itself amount to a delivery of the cotton [63 to the steamship company, constructive or otherwise. Nor was it a delivery on the steamship's pier, as between the shipper and the railway company, within the language of clause 12, and for the reasons herein stated the notice to the steamship company did not relieve the railway carrier from liability.

The uncontradicted evidence shows that the cotton came to the railway pier under these circumstances: The pier was built by the railway company, and was in its sole and absolute control and possession. Not a bale of cotton could be taken from it without the action of that company; its own watchmen were in charge of the pier at all times, and when a steamship came to the pier it was only under a permit or an order from an officer of the railway company that the cotton was taken. It was pointed out by the servants of the railway company,

and, within the custom of the port of New | across the ocean for a stated amount of cot

Orleans, it had to be brought within the reach of the ship's tackle before the ship was called upon to take it. The expression "ship's tackle" means "where the ship's ropes can get onto it so that the ship's winches can pull the cotton in." The custom was that after a steamship company retarned the transfer sheets which had been sent it by the railway company, an order was made out by the railway officials on the Westwego office of the defendant to deliver to the steamship company's agents such cotton as was ordered. It does not appear that any such order was given. Prior to the time of the arrival of the vessel which was to take the cotton and the arrival of the stevedores, the steamship company had no charge of any of the cotton on the pier. There was no particular spot on the pier at which, if cotton were there deposited, it was understood between defendant and the steamship companies to have been deposited in the care, control, or possession of any of such companies; but, on the contrary, the whole pier was covered by cotton destined indiscriminately for transportation to different European ports by different lines of steamers, not one of which could take a bale of cotton away without the order of the railway company.

ton from New Orleans to Liverpool or Bre
men, or whatever other foreign port it
might be, and no particular cotton was
specified. Having obtained this agreement
as to price and number of bales, the rail-
way company would then agree with the
shipper in Texas for a through rate from
the point in Texas at which the cotton was
to be taken to the port abroad, and it would
then give a bill of lading such as was given
in evidence in this case, providing for the
through rate and the liabilities of the vari-
ous carriers by rail and by sea; but it was
only after an arrangement had been made
and a contract entered into between the rail-
way and a *steamship company that the lat-[640]
ter company would send a steamer to the
Westwego pier. The evidence is uncontra-
dicted in regard to what the steamship
lines had to do under the agreements they
had with the defendant; in some cases they
were not under any obligation to come to
the pier unless the defendant had at least
1,500 or 2,000 bales of cotton ready for
them, while in another case the steamship
company which had a contract to take 20,-
000 bales of cotton from the railway com-
pany was not to be called on to go to the
wharf unless there were at least 500 bales
ready to deliver to it, and by the bill of lad-
ing the railway company might, under cer.
tain contingencies, if it deemed necessary,
forward the cotton by some steamer of an-
other line than that mentioned in the bill.
The steamship companies took their own
time in coming to the Westwego pier for
the cotton. If they had no special contract
with the railway company, they did not
come at all. It was not the case of a regu-
lar delivery by the railway company to a
connecting carrier at the pier of the latter.
Now upon these facts we regard it as en-
tirely clear that at the time this cotton was
lost there had been no delivery, actual or
constructive, to the steamship company, so
as to devest the defendant of its common-law
liability for the loss of this cotton.

Before the ship took the cotton it gave a mate's receipt for it, although sometimes [639]the receipt would not come as soon as *that, and the cotton would be delivered before the receipt was given. The cotton which came in on the cars of the defendant was placed all along the pier, and that which was destined for any particular company had to be pointed out and selected from a large mass of cotton on the pier. The railway company had contracts with various steamship companies, with the West India & Pacific, the French line, the lines for which Miller & Company were agents, the Hamburg-American line, and some others, and the cotton for all these various lines was unloaded upon this pier of the railway company, and was distributed all over the wharf, so that when a steamship came to the dock upon which the cotton was, that which was intended for the particular steamship then at the pier would be brought out to it or within reach of its tackle by the railway employees, depending upon where the cotton was, and how far away from the ship; and it was understood between the steamship and railway companies that the railway company would get out the cotton when necessary to do it, and by getting out to be made when it was delivered. How can the cotton was meant dragging it from it be said that there was a delivery to this where it was stored on the wharf out in steamship company upon the facts above defront or near enough in front to enable the tailed when, by agreement between the parsteamship people to get it without having ties, the company was not to take the to go around through the bales of cotton.

Within clause 12 of this bill of lading there was no delivery of the property by the defendant, either to the steamship, her master, agents, or servants, or to the steamship company, or on the steamship company's pier at the port of New Orleans, even upon the assumption that the pier at Westwego was the point agreed upon between the railway and the steamship companies, where the delivery of the cotton was

property until it sent a steamship to the

The connection of the steamship compa- pier for that purpose? Until it was deliv nies with the transportation of the cotton ered to it at the steamer's side the steamwas the subject of special contracts between er had neither possession nor control over those companies and the railway company. it. By the bill of lading the defendant The initiation would be an agreement be- could in certain contingencies, and at any tween a steamship company and the railway time before delivery to the ship, send the company for a certain charge for freight

cotton by another *steamer. Until the ship [641] did come to the pier, there can be no ques- | below did not err in directing a verdict for tion of actual delivery in this case.

fer sheet," which was taken to be a notice 1. A charter party which the managing editor

other steamer, and the company which was 2. The trustees of a newspaper corporation, in

ground of complaint if, upon the arrival of
the steamer at the pier, other cotton con-
signed to the same port were given it to the
same amount. There being only this condi-
tional obligation to send for cotton on the
part of the steamship company, and none
upon the part of the defendant to at all 3. The managing editor of

Whatever may generally be the effect of a notice to a connecting carrier, upon the question of terminating or altering the lia- 4. The chartering of a yacht by a newspaper

[642] circumstances to another *carrier for further transportation. Until actual delivery 5. The managing editor of a newspaper must in such case, the preceding carrier is not devested of his liability.

be deemed to have had authority to charter a yacht for the purpose of gathering news concerning events connected with hostilities between the United States and Spain, by a charter party embodying an absolute obligation to return the yacht at the expiration of the term of hiring and a stipulation as to value in the event of nonreturn, where payments for the hire of the boat, the expenses of its management, and premiums for insurance were entered on the corporate books, and the corporation received money from other newspapers for accommodations furnished to their reporters on board the yacht, all of which matters must be presumed to have been brought to the notice of the board of trustees charged with the management of the corporate concerns, who must have known that the editor had hired the yacht, that its possession was pursuant to a contract, and that some obligation had been entered into

for its return.

6. An absolute obligation to return a yacht at the expiration of the term of hiring is imposed upon the charterer, fallure to comply with which is not excused because the ves sel is lost without fault on his part, by a charter party which, after providing for the surrender of the vessel at the expiration of the term "in as good condition as at the start. fair wear and tear from reasonable and proper use only excepted," and requiring the hirer to make all repairs and to assume liability for all loss and damages, fixes in express terms the value of the vessel, and

Statement by Mr. Justice White:

*The yacht Kanapaha, the property of the[643]

respondent Moore, was let on April 1, 1898,
for the term of two months, by a charter
party, in which Chester S. Lord was recited
to be the hirer, but which was signed by him
as follows: "Chester S. Lord, for The Sun
Printing & Publishing Association." At
the time Mr. Lord was, and for many years
prior thereto had been, the managing editor
of the Sun newspaper, and had special
charge of the collection of news for the Sun
Printing & Publishing Association, the pub-
lisher of the newspaper aforesaid. We shall
hereafter speak of this corporation as the
Sun Association, and of the newspaper as
the Sun.

In the body of the charter party the hirer
agreed to furnish security, and contempo-

makes provision for security to protect raneously with the execution of the contract

against any loss or damage sustained by a failure of the hirer to fulfil any of the obligations which the contract imposes.

1. The obligation Imposed upon a newspaper corporation by a charter party executed for It by its managing editor, of paying $75,000, the agreed value of the vessel, in the event of her nonreturn, is not so modified as to re

quire a deduction of the hire paid from such agreed sum, due as a consequence of a detion in an agreement executed by such editor for the corporation, in compliance with the requirement of the charter party, that the charterer should give security in that sum for the performance of the contract, that the llability thereunder should in no case exceed the sum of $75,000, which stipulation followed the provisions that the corporation bound itself that the hirer would perform the obligations expressed in the charter party, and that the intention of the parties was to

fault in the return of the vessel, by a stipula

hold the corporation primarily liable for such

obligations.

8. Whether a particular stipulation to pay a sum of money is to be treated as a penalty or as an agreed ascertainment of damages is to be determined by the contract, fairly construed, and it is the duty of the court, where the damages are uncertain and have been liquidated by an agreement, to enforce the contract.

9. Parties to a charter party may stipulate the agreed value of the vessel as liquidated damages to be paid in the event of a failure to return the vessel, and such stipulation is conclusive upon them, in the absence of fraud or mistake.

[No. 49.]

a

paper was signed, which is described in the body thereof as the "understanding or agreement of suretyship" required by the charter party. This paper recited on its face that it was made by "the Sun Printing & Publishing Association," and it also was signed by Lord exactly as he had signed the charter party. Before the time fixed in the charter party had expired, that is to say, about the middle of May, 1898, a second charter party and a second agreement of suretyship were executed. *These agree-[644] ments were substantially identical with the previous ones, except they provided for a new term to begin at the expiration of the previous one and to continue for four months thereafter, that is, up to October 1, 1898.

On the execution of the first papers the yacht was delivered to the Sun Association, was by it immediately manned, equipped, and provisioned, and one or more of its reporters were placed on board with authority to direct the movements of the vessel, and she was sent to Cuban waters, to be used as a despatch boat for the purpose of gathering news concerning the events connected with the hostilities between the United States and Spain.

Early in September, 1898, the yacht was wrecked, and became a total loss. For a breach of an alleged covenant to return the vessel, asserted to be contained in the charter party, this libel in personam was filed against the Sun Association, and the damages were averred to be the value of the vessel, which it was alleged was fixed by the charter party at the sum of $75,000. The district court held that the writings were

Argued October 24, 25, 1901. Decided Jan- contracts of the Sun Association through

uary 13, 1902.

Lord, its authorized agent, and were virtu