liability is incurred by any carrier, that carrier alone shall be held liable therefor in whose actual custody the cotton shall be at the time of such damage, detriment, or loss. "2. That the rate of freight for transportation of said cotton, specified in the margin hereof, is quoted and guaranteed with the distinct understanding and only on condition that the weight of said cotton is truly and correctly represented and stated; that said rate only includes the charge for transportation, and the specification of said rate shall not be taken as any guide for construction or [851]evidence to extend this contract in other respects, or to bind the Texas & Pacific Railway Company to transport or to become in anywise responsible for said cotton after delivery thereof to its next connecting carrier, but shall only bind said company to protect said rate.

the reverse side of the contract. Those con-
ditions do not affect the questions here pre-
sented, but it was proved that the railway
and the steamship companies agreed that the
place of delivery of the cotton under the con-
tract between them should be the wharf at

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 way bill 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 way bill, the marks of the cotton, the weight, rate, freights, amount prepaid, etc., would be given to the conductor of the train bringing the car to Westwego. Upon the receipt of the way bill 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

"5. It is further agreed that in case said cotton is found at point of delivery to have been injured by any of the excepted clauses specified in this bill of lading, the burden of proof shall be upon the owner of said cotton or claimant to establish that such injury resulted from the fault of the carrier. "6. That the said cotton shall be trans-items of information covered by the way bill, ported from the port of New Orleans to the and had also the date of the making of the port of Liverpool, England, by the Elder, skeleton. When this skeleton had thus been Dempster, & Co. steamship line, with liberty made out and the car had been pushed in on to ship by any other steamship or steamship the side track in the rear of the wharf, it line; and upon delivery of said cotton to said would be taken by a clerk known as a "check ocean carrier at the aforesaid port this con- clerk," and with a gang of laborers, who acttract is accomplished, and thereupon and ually handled the cotton and were employed thereafter the said cotton shall be subject by the railway company, the car would be to all the terms and conditions expressed in opened; and as the cotton was taken from the bills of lading and master's receipt in the car bale by bale the marks would be exuse by the steamship or steamship company amined to see that they corresponded with or connecting lines by which said cotton may the items on the skeleton, and the same were be transported; and upon delivery of said then checked. The cotton thus taken from cotton, at usual place of delivery of the the car was deposited at a place on the wharf steamship or steamship lines carrying the designated by the check clerk, and it would same, at the port of destination, the respon- remain there until the steamship company sibility of the carriers shall cease." came and took it away. After the checking of the cotton in this way to ascertain that[353] the amounts, marks, and general information of the way bill 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 way bill, 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 com

On each of the bills of lading are the following words: "T. & P. contract No. 44." It does not appear that the shippers were informed what were the terms of that contract.pany with the return of the transfers that [352)*It was in proof, however, that it was in sub- this cotton would be taken by the vessel stance a contract with the Elder, Dempster, named, and would thereupon send the vessel & Co. steamship line to connect with the with their stevedores to the wharf at WestTexas & Pacific Railway Company and re- wego. The clerk at Westwego would go ceive from the latter 20,000 bales of cotton around the wharf and by the aid of the transduring the months of October, November, and fers returned from the steamship agents December, 1894, on the conditions specified on point out to the master or mate of the ves

The facts out of which the case arises are these: The railway company had warehouses and yards in New Orleans where its road terminated. Westwego is a branch station or terminal opposite that city. The company had a wharf with tracks and an office and sheds on it-the wharf having been constructed over the Mississippi river so that cars could be run upon the railroad tracks in its rear and unloaded, and so that vessels could come to its front to receive freight placed on it. The cotton in question was unloaded at the wharf at various dates from October 22d to November 4th, 1894, and was burned while on the wharf in the evening of November 12th, 1894.

sel, 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 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.

This was conceded to have been substantially the method of business between the railway company and the steamship company.

Counsel for the railway company correctly states that on the morning of the fire, and on other occasions prior thereto both in October and November, the officers of the railway company gave verbal notice to the steamship company that the cotton was upon the wharf [354]ready for the steamship company to take away and made request that the same should be removed; that the attention of the officers of the steamship company was called to the amount of cotton on the wharf which they had contracted to carry, and they were requested to move it at the earliest possible moment and to comply with their contract; and that in reply they said, in substance, that their ships had been delayed, the principal cause being certain labor troubles then existing in New Orleans with employees of the steamship companies, and another cause being the bad weather.

It may be taken as established by the evidence that the cotton in question was for some days before the fire in a position on the wharf ready to be taken by the steamship company.

So far as the management of the wharf and the protection of the cotton against fire were concerned, the evidence failed to show any negligence on the part of the railway

meaning of the contract, in the actual cus-
tody of the railway company. It will not
be disputed that in determining this ques-
tion regard must be had to all the provi-
sions of the contract. The clause declaring
that the railway company should be deemed
to have fully performed its part of the con-
tract "upon delivery of said cotton "to its next[355]
connecting carrier" must be taken with the
clause immediately following, which makes
that carrier alone liable who had actual cus-
tody of it at the time of the loss. The first
thought suggested by these clauses, taken to-
gether, is that the parties recognized the pos-
sibility that it might be often difficult to de-
termine what, as between carriers, in view
of their relations to each other, would con-
stitute a sufficient delivery to the connecting
carrier. And in order to meet that difficulty
the clause relating to actual custody was
added, so as to indicate that the delivery in-
tended, so far as liability to the shipper for
loss was concerned, was not a constructive
one, but such a delivery as involved actual
custody of the cotton by the connecting car-
rier. We do not understand that counsel
for the railway company dispute this gen-
eral view. But they insist that within the
meaning of the contract, and under the facts
disclosed by the evidence, the steamship com-
pany had actual custody of the cotton at the
time it was burned. In support of their con-
tention they rely principally upon Pratt v.
Grand Trunk Railway Company, 95 U. S. 43,
46 [24: 336, 339], and the cases upon which
that case largely rests-Merriam v. Hartford
& N. H. Railroad Co. 20 Conn. 354, and Con-
verse v. Norwich & New York Transporta-
tion Co. 33 Conn. 166.

The principal question arises out of that clause in the bill of lading providing that in case of any loss, detriment, or damage done to or sustained by the cotton before its arrival and delivery at its final destination, whereby liability was incurred by any carrier, that carrier alone should be held liable therefor in whose actual custody the cotton should be at the time of such damage, detriment, or loss. The circuit court of appeals and the circuit court concurred in the view that the cotton when burned was, within the

It is important to understand what were the facts upon which the judgment in Pratt v. Grand Trunk Railway Company was based. According to the report of that case they were these:

The Grand Trunk Railway Company, engaged as a carrier in the transportation of property, had received at Montreal to be carried to Detroit certain goods shipped at Liverpool for St. Louis. The goods reached Detroit in the cars of that company on the 17th day of October, 1865, and were destroyed by fire in the night of the succeeding day.


The company had no freight room or depot at Detroit, but it used there a single section or apartment in the frieght depot of the Michigan Central Railroad Company, a building several hundred feet long, three or four hundred feet wide, and all under one

The defendant moved for a verdict in its behalf upon two grounds: 1. The evidence showed a delivery of the cotton to the connecting carrier before the fire occurred. 2. If no delivery took place before the fire, there had been a sufficient tender of the cotton to the steamship carrier, and thereafter, in view of the facts, the railway company should be deemed to have held it as a warehouseman, and as there was no proof of neg-roof. Its different sections were without ligence it was not liable for the value of the partition walls between them. In the cencotton. ter of the building there was a railroad track for cars to be loaded with freight. The section in that building used by the Grand[356] Trunk Company was used only as a place for depositing goods and property that came over its road or that were delivered for shipment over it. In common with the rest of the building, that section was under the control and supervision of the Michigan Central Company.

The Grand Trunk Company employed in its section two men, who checked freight coming into it. But all freight that came

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into that section was handled exclusively by
the employees of the Michigan Central Com-
pany, and the Grand Trunk Company paid
that company a fixed compensation per hun-
dred weight for such work as well as for the
use of its section.

party and received by the other for transpor-
tation, the deposit being accessory merely to
such transportation. 3. No further orders
or directions from the Grand Trunk Com-
pany were expected by the receiving party.
Except for the occurrence of the fire, the
goods would have been loaded into the cars
of the Michigan Central Company, and for-
warded, without further action of the Grand
Trunk Company. 4. Under the arrange-
ment between the parties, the presence of the
goods in the precise locality agreed upon, and
the marks upon them, 'P. & F., St. Louis,'
were sufficient notice that they were there for
transportation over the Michigan road to-
wards the city of St. Louis; and such was
the understanding of both parties." Refer-
ring to the section of the freight building
specially used by the Grand Trunk Company,
the court said: "It was a portion of the[358)
freight house of the Michigan Company, in
which a precise spot was selected or set
apart, where the defendant might deposit
goods brought on its road and intended for
transportation over the Michigan road, and
which, by usage and practice and the expec-
tation of the parties, were then under the
control of the Michigan Company, and to be
loaded on to its cars at its convenience, with-
out further orders from the defendant."

We do not think that the judgment in Pratt v. Railway Company controls the determination of the present case. In many important particulars the two cases are materially different. In the Pratt Case the The goods referred to in the Pratt Case court proceeded upon the ground that the were taken from the Grand Trunk cars on goods were deposited in a section of a freight the 17th day of October, 1865, and deposited building set apart by the connecting carrier, in the apartment of the freight building used the owner of the building, for goods coming by the Grand Trunk Company in the place over the line of the first carrier to be transassigned for goods so destined. ported in the cars of the connecting carrier (357 *At the time the goods were forwarded from to the place to which they were consigned, Montreal the way bill in accordance with the goods having been unloaded by the emusage in such cases was made out in dupli- ployees of the connecting carrier and by cate, on which were entered a list of the them deposited in that section, to be put by goods, the names of the consignees, the such employees into the cars of that carrier places to which they were consigned, and the at its convenience. It was a case in which the charges against them from Liverpool to De-goods passed under the complete control and troit. The conductor having charge of the supervision and into the actual custody of train containing the goods would take one of the connecting carrier from the moment they these way bills, and on arriving at Detroit were deposited in the section set apart for would deliver it to the checking clerk of the them. Grand Trunk Company, "from which said clerk checked said goods from the cars into said section." The other copy would be forwarded to the agent of the Grand Trunk Company at Detroit. "It was the practice of the Michigan Central Railroad Company, before forwarding such goods, to take from said way bill in the custody of said checking clerk, in the manner aforesaid, the place of destination and a list of said goods, and the amount of accumulated charges, and to collect the same, together with its own charges, of the connecting carrier."

In the case at bar, the facts plainly indicate that although the goods had been placed by the first carrier upon the wharf, and although that was the place at which the steamship company was to receive or usually received goods from the railway company for further transportation, they were not in the actual possession or under the actual control of the connecting carrier at the time of the fire. The connecting carrier had not given a mate's receipt for the cotton or assumed control of it. True, it had received notice that the goods were on the wharf and could be taken into possession, but such notice did not put the cotton into the actual custody of the connecting carrier. The opportunity given it to take possession or its mere readiness to take possession was not under the contract equivalent to placing the cotton in the actual custody of the steam-[359] ship line. The undertaking of the railway

This court, in view of these facts, said: "We are all of the opinion that these acts constituted a complete delivery of the goods to the Michigan Central Company, by which the liability of the Grand Trunk Company was terminated. 1. They were placed within the control of the agents of the Michigan Company. 2. They were deposited by one

Goods coming into that section from the Grand Trunk Railroad to be carried over the road of the Michigan Central Company, after being unloaded were deposited by the employees of the latter company in a certain place in the Grand Trunk section, from which they were loaded into the cars of the Michigan Central Company by its own employees, whenever that company was ready to receive them; and after being so placed the employees of the Grand Trunk Company did not further handle such goods.

Whenever the agent of the Michigan Central Company saw any goods deposited in the section of the freight building used by the Grand Trunk Company and which were to be carried over the line of the former company, he would call on the agent of the latter company in the building, and from the way bill exhibited by the agent of the Grand Trunk Company take a list of such goods, and would then for the first time learn their place of destination, together with the amount of freight charges due thereon. From the information thus obtained a way bill would be made out by the Michigan Central Company for the transportation of the goods over its line of railway, and not before.

company was to transport safely and deliver to the next connecting carrier. But its further express agreement was, in substance, that if any carrier incurred liability to the shipper in respect of the goods, that carrier alone was to be liable who, at the time the cotton was damaged or lost, had it in actual custody. In other words, the delivery to the connecting carrier which would, as between the first carrier and the shipper, terminate the liability of such carrier, must have been a delivery that put the cotton into the actual, not constructive, custody of the connecting carrier. To hold otherwise is to eliminate from the contract the clause relating to actual custody. The entire argument of the learned counsel for the railway company in effect assumes that the contract means no more than it would mean if that clause were omitted. But the court cannot hold that that clause is meaningless, or that it was inserted in the contract in ignorance of the meaning of the words "actual custody." Nor can it be supposed that the parties understood the contract to mean that the connecting carrier was to be deemed to have actual custody from the moment it could have taken actual custody if it had seen proper to do so. So far as the shipper was concerned, the actual custody of the first carrier could not cease until it was in fact displaced by the actual custody of the connecting carrier. It may be that the railway company has good ground for saying that, as between it and the connecting carrier, une latter was bound to take actual custody whenever the railway company was ready to surrender possession, and thereby relieve the latter from possible liability to the shipper in the event of the loss of the cotton while in its custody. That is a matter between the two carriers, touching which we express no opinion. But we adjudge that the shipper cannot be compelled, when seeking damages for the value of his cotton destroyed by fire in the course of its transportation, to look to any carrier except the one who had actual custody of it at the time of the fire. One of the conditions imposed upon him by the contract was that if any carrier became liable to him he should have no remedy except against [360]the one having such actual custody. That remedy should not be taken from him by a construction of the contract inconsistent with the ordinary meaning of the words used.

the hands of the carrier itself or its servant or some person authorized by the carrier to receive it, and that if it was merely deposited in the yard of an inn, or upon a wharf to which the carrier resorts, or in the carrier's cart, vessel, or carriage, without the knowledge and acceptance of the carrier, its servants or agents, there would be no sufficient delivery to charge the carrier, the court said: "But this rule is subject to any conventional arrangement between the parties in regard to the mode of delivery, and prevails only where there is no such arrangement. It is competent for them to make such stipulations on the subject as they see fit; and when made they, and not the general law, are to govern. If, therefore, they agree that the property may be deposited for transportation at any particular place without any express notice to the carrier, such deposit merely would be a sufficient delivery. So is in this case the defendants had not agreed to dispense with the express notice of the delivery of the property on their dock, actual notice thereof to them would have been necessary; but if there was such an agreement, the deposit of it there merely would amount to constructive notice to the defendants, and constitute an acceptance of it by them. And we have no doubt that the proof by the plaintiff of a constant and habitual practice and usage of the defendants to receive property[361] at their dock for transportation in the manner in which it was deposited by the plaintiff, and without any special notice of such deposit, was competent, and in this case sufficient, to show a public offer by the defendants to receive property for that purpose and in that mode; and that the delivery of it there accordingly by the plaintiff in pursuance of such offer should be deemed a compliance with it on his part, and so to constitute an agreement between the parties by the terms of which the property, if so deposited, should be considered as delivered to the defendants without any other notice. Such practice and usage were tantamount to an open declaration, a public advertisement by the defendants, that such a delivery should of itself be deemed an acceptance of it by them for the purpose of transportation; and to permit them to set up against those who had been thereby induced to omit it, the formality of an express notice, which had thus been waived, would be sanctioning the greatest injustice and the most palpable fraud.”

The two cases in the supreme court of Connecticut which were cited in Pratt v. Grand Trunk Railway Co. undoubtedly sustain the principles announced in that case, but they do not militate against the views we have expressed in this case.

Converse v. Norwich & New York Transportation Co. 3 Conn. 166, 181, involved the question whether certain goods had been delivered to the connecting carrier prior to their destruction by fire. The wharf and Merriam v. Hartford & New Haven Rail- depot building in which the goods were deroad Co. 20 Conn. 354, 360, was an action on posited by the first carrier were owned by the case for negligence on the part of a rail- the connecting carrier, and the first carrier road company in the transportation and de- paid an annual rental for its use in its busilivery of certain goods, and in which it was ness. The court, among other things, said: a question whether the goods had been de- "We have no difficulty in determining, indeed livered to the company before their destruc- we must hold, that there was a mutual tion. After stating the general rule to be agreement, or tacit understanding equiva that, in order to charge a common carrier for lent to such an agreement, that the transthe loss of property delivered to it for transportation company should place the through portation. the property must be delivered into freight at that precise spot, and that the

Northern road should take it from thence at | become a warehouseman. It had done no a time convenient to them. The construc- act evidencing its intention to renounce the tion of the depot and the uniform usage are one capacity and assume the other. Alconclusive of it. The depot was constructed though it had requested the steamship line with a platform by the side of the track for to remove the cotton, it had not specified any the reception of goods to be taken from or particular time within which compliance was put into the cars; and on that platform the insisted on, and had not given notice that the railroad company in the first and every in- cotton would be kept or stored at the risk of stance of delivery by them placed their the steamship line upon failure to comply freight, and the transportation company at with the request. The request to come and their convenience took it away and carried remove it 'as soon as practicable' was, in efit on board their boat. And so the transpor- fect, one to remove it at the earliest conven[362]tation *company in like manner in the first ience of the steamship line. There is nothand every instance placed there the freight ing in the case to indicate that the defendant for the Northern road; and they at their had not acquiesced in the delay which interconvenience put it in their cars and took it vened between the request and the fire." 51 away. And the usage was precisely the U. S. App. 676, 686. same with the Worcester road. Upon this wharf and into the inclosure the Northern road laid their track for the delivery and reception of freight to and from the transportation company. Both parties then contemplated a delivery and reception on this wharf and in this inclosure, and obviously in the precise manner actually pursued.

. . It is clear, then, that both the transportation company and the Northern road contemplated that a placing of freight by either intended for the other upon that platform was all that either was to do by way of delivery of their freight to each other."

Under the views expressed in this opinion, it is unnecessary to enter upon a review of the numerous cases cited by counsel for the railway company in their able and elaborate brief to support the different propositions discussed by them.

We are of opinion that the circuit court did not err in directing a verdict for the plaintiff, and the judgment is affirmed.

UNITED STATES, Plff. in Err.,



(See S. C. Reporter's ed. 363-381.) Special compensation of district attorney.

Services of a United States district attorney in instituting and conducting proceedings on be half of the government for the condemnation of land for public purposes, within his district, are such as the law requires the district attorney to render, and consequently he can receive no special compensation therefor, as such proceedings constitute a civil action within U. S. Rev. Stat. § 771, and are the business of the United States within § 824.

It is to be observed that neither in the
Pratt Case nor in the Converse and Merriam
Cases was there any clause in the contract
between the parties to the effect that the
shipper, in enforcing his claim for liability,
should look alone to the carrier who had the
actual custody of the goods at the time they
were lost or destroyed. It is the clause of
that character in the bill of lading now in
suit which makes the judgments in the
Pratt, Converse and Merriam Cases inap-
plicable to the present case.

A further contention of the defendant is
that at the time of the fire it held the goods,
if at all, only as a warehouseman and not as
a common carrier, and that the circuit court
erred in not so instructing the jury. We
cannot assent to this view. As the goods
had not at the time of the fire passed into Submitted
the actual custody of the steamship com-
pany, and as the contract expressly declared

that if any carrier was liable for their de

N CERTIFICATE from the Waited States

Circuit Court of Appeals for the Second

struction that one alone should be liable in whose actual custody the goods were when Circuit certifying to this court certain quesdestroyed, the defendant could not escape re- tions of law upon which the Circuit Court sponsibility by showing that the connecting of Appeals desired instructions in an action carrier could by reasonable diligence have brought by Jesse Johnson, plaintiff, in the taken actual custody prior to the fire. In other Circuit Court of the United States for the words, it could not convert itself into a ware- Eastern District of New York, against the houseman by proving that it had, before the United States for compensation for services fire, tendered the goods to the connecting car- rendered by the plaintiff as United States rier, and that the latter neglected, although district attorney, for which he claimed com[363] without reasonable excuse, to take them *in-pensation beyond the salary and emoluments attached to the said office in which suit a judgment was rendered in his favor against the government for the sum of $6,513.95. Question as to plaintiff's right to extra compensation answered in the negative.

to its actual custody. Even if this were not
so, the suggestion that the railway company
had become a warehouseman before the fire
occurred can be disposed of on the grounds
stated by the circuit court of appeals.
Speaking by Judge Wallace, that court said:
"There is no room for the contention that
the defendant had ceased to be a carrier and

The facts are stated in the opinion.
Mr. James E. Boyd, Assistant Attorney
General, for the plaintiff in error.

[No. 59.]

November 10, 1899.
February 27, 1899.


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