ROBERT B. JENNINGS, Plaintiff,
CLYDE STEAMSHIP COMPANY, Defendant.
SUBMISSION of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
Henry J. Bigham of counsel [Harrington, Bigham & Englar, attorneys], for the plaintiff.
Norman B. Beecher of counsel, Ray Rood Allen with him on the brief [[Burlingham, Montgomery & Beecher, attorneys], for the defendant.
Defendant, a corporation, is a common carrier engaged in the transportation of merchandise between different ports of the United States. On February 19, 1910, plaintiff's assignor shipped on board the steamship Onondaga, operated by the
defendant, then lying at Jacksonville, Fla., bound for the port of Boston, Mass., 203 barrels and 161 sacks of rosin dross to be transported to Boston, and there delivered to the Vera Chemical Company, according to the terms of a bill of lading. The vessel arrived and docked at Lewis' wharf, the dock of the defendant company, at Boston on February 25, 1910, and said goods were discharged from said steamship to said wharf on February twenty-sixth. On Sunday, the twenty-seventh, a fire originated on said wharf which destroyed said goods. At the time of said fire all of the goods were in the possession of the defendant, the said loss and damage to the said goods was not caused by an act of God, a public enemy, authority of law, or the act or default of the shipper or owner, but it was caused solely by the fire, which said fire did not occur through the negligence of the defendant carrier, its agents or servants. The said fire occurred within forty-eight hours after the arrival of said steamship in the port of Boston, and no notice of arrival of said goods was sent or given by said agents prior to the time of the said fire and damage. The stipulated damage was $677.83. Defendant having refused to pay upon demand, contending that upon the foregoing facts, and because of the exceptions contained in the bill of lading, it was not liable, this controversy was submitted.
The bill of lading provides, inter alia, as follows:
'Sec. 1. The carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto, except as hereinafter provided. No carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto or delay caused by the act of God, the public enemy, the authority of law, or the act or default of the shipper or owner. * * * For loss, damage or delay caused by fire occurring after forty-eight hours (exclusive of legal holidays) after notice of the arrival of the property at destination or at port of export (if intended for export) has been duly sent or given, the carrier's liability shall be that of warehouseman only. * * *
'Sec. 5. Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be
kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier's responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner and there held at the owner's risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage. * * *
'Sec. 9. * * * If all or any part of said property is carried by water over any part of said route, such water carriage shall be performed subject to the liabilities, limitations, and exemptions provided by statute and to the conditions contained in this bill of lading not inconsistent with such statutes or this section, and subject also to the condition that no such carrier or party in possession shall be liable for any loss or damage resulting from fire, or for any loss or damage resulting from the perils of the lakes, sea, or other waters; or from vermin, leakage, chafing, breakage, heat, frost, wet, explosion, bursting of boilers, breakage of shafts or any latent defect in hull, machinery, or appurtenances, whether existing prior to, at the time of, or after sailing; or unseaworthiness; or from collision, stranding or other accidents of navigation, or from prolongation of the voyage.'
It is clear from the conceded facts that the goods which had been received by the common carrier for carriage by water and had been unloaded from the ship upon its own wharf, completely under its control, were still in its possession. They had not been delivered actually or constructively. No notice had been given of their arrival and of course forty-eight hours had not elapsed after such notice, so that the carrier's liability had not been transformed to that of warehousemen only. So that the provisions neither of the 1st section of the bill of ...