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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.

"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 re-
sulted from the fault of the carrier.

"6. That the said cotton shall be trans-
ported from the port of New Orleans to the
port of Liverpool, England, by the Elder,
Dempster, & Co. steamship line, with liberty
to ship by any other steamship or steamship
line;
and upon delivery of said cotton to said
ocean carrier at the aforesaid port this con-
tract is accomplished, and thereupon and
thereafter the said cotton shall be subject
to all the terms and conditions expressed in
the bills of lading and master's receipt in
use by the steamship or steamship company
or connecting lines by which said cotton may
be transported; and upon delivery of said
cotton, at usual place of delivery of the
steamship or steamship lines carrying the
same, at the port of destination, the respon-
sibility of the carriers shall cease."

the reverse side of the contract. Those conditions do not affect the questions here presented, but it was proved that the railway and the steamship companies agreed that the place of delivery of the cotton under the contract between them should be the wharf at Westwego.

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 items of information covered by the way bill, 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[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

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 con-out what was designated as a "transfer structed 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.

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. [352]*It was in proof, however, that it was in substance a contract with the Elder, Dempster, & Co. steamship line to connect with the Texas & Pacific Railway Company and receive from the latter 20,000 bales of cotton during the months of October, November, and December, 1894, on the conditions specified on

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 å 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 ves

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

company.

meaning of the contract, in the actual custody of the railway company. It will not be disputed that in determining this question regard must be had to all the provisions of the contract. The clause declaring that the railway company should be deemed to have fully performed its part of the contract "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 custody of it at the time of the loss. The first thought suggested by these clauses, taken together, is that the parties recognized the possibility that it might be often difficult to determine what, as between carriers, in view of their relations to each other, would constitute 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 intended, 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 carrier. We do not understand that counsel for the railway company dispute this general view. But they insist that within the meaning of the contract, and under the facts disclosed by the evidence, the steamship company had actual custody of the cotton at the time it was burned. In support of their contention 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 Converse v. Norwich & New York Transportation Co. 33 Conn. 166.

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 conipany on the 17th day of October, 1865, and were destroyed by fire in the night of the succeeding day.

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. The company had no freight room or deIf no delivery took place before the fire, pot at Detroit, but it used there a single secthere had been a sufficient tender of the cot- tion or apartment in the frieght depot of the ton to the steamship carrier, and thereafter, Michigan Central Railroad Company, in view of the facts, the railway company building several hundred feet long, three or should be deemed to have held it as a ware- four hundred feet wide, and all under one houseman, and as there was no proof of neg-roof. Its different sections were without ligence it was not liable for the value of the

cotton.

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

a

partition walls between them. In the center of the building there was a railroad track for cars to be loaded with freight. The sec tion 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

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.

into that section was handled exclusively by | party and received by the other for transpor-
the employees of the Michigan Central Com- tation, the deposit being accessory merely to
pany, and the Grand Trunk Company paid such transportation. 3. No further orders
that company a fixed compensation per hun- or directions from the Grand Trunk Com-
dred weight for such work as well as for the pany were expected by the receiving party.
use of its section.
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."

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.

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 court proceeded upon the ground that the goods were deposited in a section of a freight building set apart by the connecting carrier, the owner of the building, for goods coming over the line of the first carrier to be transported in the cars of the connecting carrier to the place to which they were consigned, the goods having been unloaded by the employees of the connecting carrier and by them deposited in that section, to be put by such employees into the cars of that carrier at its convenience. It was a case in which the goods passed under the complete control and supervision and into the actual custody of the connecting carrier from the moment they were deposited in the section set apart for them.

The goods referred to in the Pratt Case were taken from the Grand Trunk cars on the 17th day of October, 1865, and deposited in the apartment of the freight building used by the Grand Trunk Company in the place assigned for goods so destined. 1357 At the time the goods were forwarded from Montreal the way bill in accordance with usage in such cases was made out in duplicate, on which were entered a list of the goods, the names of the consignees, the places to which they were consigned, and the charges against them from Liverpool to Detroit. The conductor having charge of the train containing the goods would take one of these way bills, and on arriving at Detroit would deliver it to the checking clerk of the Grand Trunk Company, "trom which said In the case at bar, the facts plainly indiclerk checked said goods from the cars into cate that although the goods had been placed said section." The other copy would be for-by the first carrier upon the wharf, and alwarded to the agent of the Grand Trunk though that was the place at which the Company at Detroit. "It was the practice steamship company was to receive or usually of the Michigan Central Railroad Company, received goods from the railway company before forwarding such goods, to take from for further transportation, they were not in said way bill in the custody of said checking the actual possession or under the actual clerk, in the manner aforesaid, the place of control of the connecting carrier at the time destination and a list of said goods, and the of the fire. The connecting carrier had not amount of accumulated charges, and to col- given a mate's receipt for the cotton or aslect the same, together with its own charges, sumed control of it. True, it had received of the connecting carrier." 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

company was to transport safely and deliver | the hands of the carrier itself or its servant to the next connecting carrier. But its fur- or some person authorized by the carrier to ther express agreement was, in substance, receive it, and that if it was merely deposited that if any carrier incurred liability to the in the yard of an inn, or upon a wharf to shipper in respect of the goods, that carrier which the carrier resorts, or in the carrier's alone was to be liable who, at the time the cart, vessel, or carriage, without the knowlcotton was damaged or lost, had it in actual edge and acceptance of the carrier, its servcustody. In other words, the delivery to the ants or agents, there would be no sufficient connecting carrier which would, as between delivery to charge the carrier, the court the first carrier and the shipper, terminate said: "But this rule is subject to any conthe liability of such carrier, must have been ventional arrangement between the parties a delivery that put the cotton into the ac- in regard to the mode of delivery, and pretual, not constructive, custody of the con- vails only where there is no such arrangenecting carrier. To hold otherwise is to ment. It is competent for them to make eliminate from the contract the clause re- such stipulations on the subject as they see lating to actual custody. The entire argu- fit; and when made they, and not the general ment of the learned counsel for the railway law, are to govern. If, therefore, they agree company in effect assumes that the contract that the property may be deposited for transmeans no more than it would mean if that portation at any particular place without any clause were omitted. But the court cannot express notice to the carrier, such deposit hold that that clause is meaningless, or that merely would be a sufficient delivery. So is it was inserted in the contract in ignorance in this case the defendants had not agreed to of the meaning of the words "actual custo- dispense with the express notice of the dedy." Nor can it be supposed that the par- livery of the property on their dock, actual ties understood the contract to mean that notice thereof to them would have been necesthe connecting carrier was to be deemed to sary; but if there was such an agreement, have actual custody from the moment it the deposit of it there merely would amount could have taken actual custody if it had to constructive notice to the defendants, and seen proper to do so. So far as the shipper constitute an acceptance of it by them. And was concerned, the actual custody of the first we have no doubt that the proof by the plaincarrier could not cease until it was in fact tiff of a constant and habitual practice and displaced by the actual custody of the con- usage of the *defendants to receive property[361) necting carrier. It may be that the railway at their dock for transportation in the mancompany has good ground for saying that, as ner in which it was deposited by the plainbetween it and the connecting carrier, une tiff, and without any special notice of such latter was bound to take actual custody deposit, was competent, and in this case sufwhenever the railway company was ready to ficient, to show a public offer by the defendsurrender possession, and thereby relieve the ants to receive property for that purpose and latter from possible liability to the shipper in that mode; and that the delivery of it in the event of the loss of the cotton while in there accordingly by the plaintiff in pursuits custody. That is a matter between the ance of such offer should be deemed a comtwo carriers, touching which we express no pliance with it on his part, and so to conopinion. But we adjudge that the shipper stitute an agreement between the parties by cannot be compelled, when seeking damages the terms of which the property, if so defor the value of his cotton destroyed by fire posited, should be considered as delivered to in the course of its transportation, to look to the defendants without any other notice. any carrier except the one who had actual Such practice and usage were tantamount to custody of it at the time of the fire. One of an open declaration, a public advertisement the conditions imposed upon him by the con- by the defendants, that such a delivery tract was that if any carrier became liable to should of itself be deemed an acceptance of him he should have no remedy except against it by them for the purpose of transportation; [360]the one having such *actual custody. and to permit them to set up against those That remedy should not be taken from him who had been thereby induced to omit it, the by a construction of the contract inconsis- formality of an express notice, which had tent with the ordinary meaning of the words thus been waived, would be sanctioning the used. 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 equivathat, 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

act evidencing its intention to renounce the one capacity and assume the other. Although it had requested the steamship line to remove the cotton, it had not specified any particular time within which compliance was insisted on, and had not given notice that the cotton would be kept or stored at the risk of the steamship line upon failure to comply with the request. The request to come and remove it 'as soon as practicable' was, in effect, one to remove it at the earliest convenience of the steamship line. There is nothing in the case to indicate that the defendant had not acquiesced in the delay which intervened between the request and the fire." 51 U. S. App. 676, 686.

Northern road should take it from thence at | become a warehouseman. It had done no a time convenient to them. The construction of the depot and the uniform usage are conclusive of it. The depot was constructed with a platform by the side of the track for the reception of goods to be taken from or put into the cars; and on that platform the railroad company in the first and every instance of delivery by them placed their freight, and the transportation company at their convenience took it away and carried it on board their boat. And so the transpor[362]tation *company in like manner in the first and every instance placed there the freight for the Northern road; and they at their convenience put it in their cars and took it away. And the usage was precisely the 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."

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 inapplicable to the present case.

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, Piff. in Err.,

v.

JESSE JOHNSON.

(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.

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

[blocks in formation]

CERTIFICATE from the Taited States

that if any carrier was liable for their de-Nircuit Court of Appeals for the Second

Circuit certifying to this court certain questions of law upon which the Circuit Court of Appeals desired instructions in an action brought by Jesse Johnson, plaintiff, in the Circuit Court of the United States for the Eastern District of New York, against the United States for compensation for services rendered by the plaintiff as United States district attorney, for which he claimed com

struction that one alone should be liable in whose actual custody the goods were when destroyed, the defendant could not escape responsibility by showing that the connecting carrier could by reasonable diligence have taken actual custody prior to the fire. In other words, it could not convert itself into a warehouseman by proving that it had, before the fire, tendered the goods to the connecting carrier, and that the latter neglected, although [363] without reasonable excuse, to take them *in-pensation beyond the salary and emoluments 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

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 com-
pensation answered in the negative.

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

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