The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. III, Part 79

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440

USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. III > Part 79

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In unloading a vessel, it is usual, as soon as articles of bulk, such as crates, are brought upon deck, to pass them over the side of the vessel and land them on the wharf. It is also the practice of the owners to station a clerk upon the wharf, who takes a memorandum of the goods which leave the wharf, and the day on which they are taken away, for the information of his employ- ers, in a book called the cargo book. The cargo of the Lancaster was, on this occasion, unloaded in the usual manner, but the cargo book contains no entry in regard to No. 28, except a memorandum from the bill of land- ing, made in the margin, as is usual before beginning to unload, but which has no reference to the actual re- ceipt of the same by the consignee, or on his behalf.

It is agreed that the value of the crate, No. 28, be as- sessed at fifty-one dollars and fifty-three cents, which includes its proportion of duties and other Custom House expenses, (prout statement and invoice,) and the cargo book, plaintiff's invoice, and bill of lading, shall be in evidence.

Upon these facts, if the Court be of opinion that the duty of the defendants required them to see that the said crate, No. 28, after being landed as aforesaid, was received by the plaintiff, their judgment is to be enter- ed for the plaintiff in the sum of fifty-one dollars and fif- three cents; but, if the Court be of opinion that the duty of the defendants did not so require, their judgment is to be entered for the defendants, and the costs are to abide the event of the snit. It is further agreed that the case thus stated be considered as a special verdict and subject to a writ of error, and that all questions of law be decided under the issue on the present Narr: wheth- er the evidence shows a case of negligence or conver- sion."

The cause was argued by J. Cadwalader for the plain- tiffs in error, who were defendants below, and by H. M'Ilvaine for the defendant in error.

For the plaintiff's in error it was said, that the deci- sion of the Court below could not be supported without requiring of the owners of vessels, whose cargoes are subject to the revenue laws of the United States, the performance of duties such as these laws rendered it im- possible to perform. This would appear by consider- ing the effect of the act of Congress of the 2d March, 1799, sect. 53, 54, 55, and 56. (1 Story's Ll. U. S. 619, et. seq.)

The special verdict expressly states that the missing crate of hardware was landed on the wharf. It also states that the cargo of this vessel was unloaded according to the usual manner, and it likewise describes the usual mode of unloading. The usage so defined appears to be iden- tical with that of the port of Marseilles, as recognized in a decision of the Admiralty in 1748. (1 Valin, 530. ) Sim- ilar usages have been sustained in London, in the Tur- key trade, (Drumage v. Jolliffe, Abbott on Ship: 250, Story's ed. 1829,) and at New York, in our own coast- ing trade, (Warren v. Crocheron, N. Y. Com. plaintiff's, Oct. 26th, 1827, published the following day in the Statesman.)

But, independently of usage, and without reference to the law concerning land carriers or coasting traders, who are presumed to be conversant with persons and localities at each end of their transit, the question here presented depends upon principles exclusively applica- ble to the case of vessels arriving from foreign parts. In this point of view the question is one of general law,

and must be decided by some rule which we would be content to see reciprocated in its application to the ships of our own countrymen when abroad. At the season of unlading the master has a variety of duties to perform, which render it impossible for him to hunt out each indi- vidual consignee on shore. It is not his business to be conversant with the requisites of such a pursuit. The vessel may perhaps be owned and manned by foreign- ers, of whom not one is acquainted with so much as the language of the place of arrival. Even in a case like the present, where the ship reaches her home, the master and owner ought not to continue subject to res- ponsibility after they are, to all intents and purposes, deprived of their controul over the cargo by the ope- ration of the revenue laws. The consignee, on the other hand, is, or ought to be, familiar with the means proper to be used in order to obtain posses- sion of his own particular consignment. He knows of the shipment through his letter of advice. He also knows when the vessel arrives, or (what is the same thing) he is bound to know it. According to the rules of the law-merchant he is not excusable for ignorance of her arrival in port, (Harman v. Clarke, 4 Camp. 159 .- Holt on ship. 395, ed. 1824.) Upon the ship's arrival, either he takes out a permit or he does not. If he does take one out, he is necessarily reminded to send to the vessel for the articles upon which he pays the duty. If he does not pay the duties, the goods cannot be touch- ed, either by himself or by the ship owner. Both must submit to the act of Congress which provides that the goods shall be carried from the vessel to the Custom House. All this time they remain in the custody of the law. Now it is a fundamental maxim that the act of law shall work no wrong. It would be a very great wrong to continue a man's liability after compulsorily divesting him of all controul over the subject of that liability. Up- on the strictest rule, a carrier's liability is of necessity at an end when nothing remains to be done by him in his capacity of carrier. The extent of his duties in this res- pect must vary according to the description of carriage undertaken. Consequently, this case is not to be gov- erned by authorities bearing upon the duties of carriers by land, or by inland navigation, or river craft. Among vessels which make sea voyages, some distinction should also be made between those employed in the coasting trade, whose cargoes are not subject to the Custom House regulations, and ships from foreign countries. As to such ships, thus arriving from sea, it is a settled law that the liability of their owner or master, as a carrier, is at an end as soon as the thing carried is safely deposited in the usual manner, on the usual wharf. (Hyde v. Trent, 5, T. R. 889. Chickening v. Fowler, 4 Pick. 371. Ab- bott, [Story's ed. of 1829] 249. 1 Valin, 636, 637.]

If the general doctrine were not so clear, the same result might, in the present case, be fairly contended for upon a narrower ground. For, inasmuch as the consignee chose to send his own servant to the wharf to receive the goods in question, and thus designated the wharf as the place of delivery, he must be under- stood to have taken the goods into his own custody, and to have dispensed with any duty of the carrier in this respect, which he might otherwise have claimed to as- sert (Sparrow v. Caruthers Str. 1236 Strong v. Natally 4 Bos. and Pul. 16., 5 T. R. 396. per Ashurst, J.)

For the defendant in error the question was stated by his counsel to be, not whether the wharf was the pro- per place of delivery as had been contended on the other side, but, whether there had in fact been any de- livery at all of the crate in question, to any body, either at the wharf or elsewhere, (Ostrander v. Brown, 15 Johns. 39.) To deliver the goods he carries is the most important part of the carrier's contract. That the defendants below understood their own duties in this respect appears from the fact found in the special ver- dict, that they stationed their clerk upon the wharf, as was their practice, to take an account of the delivery of the cargo in a book specially appropriated to that pur-

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pose and no other. This constituted of itself an under- taking, independently of their general duty to manage and superintend the discharge and delivery of the cargo in all its details. Now the question occurs. What is a delivery? The answer may be found in the definition of a bill of landing, an engagement, which, in substance as well as in form, includes a duty to keep the goods until they are received into the actual possession of the consignee or his assigns. A constructive or imaginary transfer of the possession is no delivery. To hold it to be so would be repugnant to principles which lie at the very foundation of the law of carriers. (Garnett v. Willan 5, Barnew. and Ald. 53, Duff v. Budd 3 Brod. and Bing. 177.) It would be in effect to hold that a carrier wouldl comply with his engagement safely to de- liver the merchandize carried by merely putting it down unprotected upon a wharf, open to the weather and exposed to the pilferer, to remain there over night unless called for, without even the safeguard of a single watchman. Many actions have been sustained against carriers for delivering goods to the wrong persons. A single such instance would suffice to prove that the car- rier is bound either to find the proper person, or at least to keep the goods safely till the proper person comes to take them. As to the authorities cited; to that of Valin and the case in 4 Pickering 371, we op- pose the decision of the Supreme Court of New-York, in Ostrander v. Brown, already cited, and the obvious leaning of chancellor Kent, twice manifested in his commentaries, (2 K. Comm. 469, 3 do. 170.) In the case in 5, T. R. 389, so much pressed upon us, the re- marks of the three judges which are relied on by the other side were entirely extra-judicial. These remarks were adapted to a state of things which does not here exist. In England the intervention of wharfingers who are distinct bailees interposed between the ship owner and the freighter for the accommodation and security of both, may have introduced there an appropriate princi- ple of decision which would be utterly inapplicable to the case of vessels discharging their cargoes at the port of Philadelphia.

As to the custom of our port, the special verdict finds that the wharf is the usual place of landing goods as ta- ken from the vessel. Where else could they be landed? How does this prove a custom that when the goods are thus landed, their delivery is complete, or the duties of the carrier in this respect ended? Even though such an inference were deducible, the argument would not avail the carrier. In Ostrander v. Brown, (15 Johns, 39,) the court rejected the evidence offered for the pur- pose of proving that precisely such a usage prevailed at Albany. The custom of the river Thames has been found and decided upon directly to the point, that the- carrier to London is not discharged of his engagement to deliver the goods carried, by landing them upon the usual wharf. (Wardell v. Mowrillyan 2 Esp. 603.) Such a custom would be a violent encroachment on the common law; and, moreover, it would be both unrea- sonable and inconvenient. The discharging of a cargo occupies several days. Each consignee would, upon the doctrine contended for on the other side, be sepa- rately put to the same expence and trouble to secure the receipt of his own particular consignment, which if, on the contrary, the duty were devolved upon the car- rier, as we contend it ought to be, might at a compara- tively trifling inconvenience be borne by him for the common benefit of all.

The revenue laws du not operate so as to vary the case. When the consignee pays or secures the duties he receives his permit, and thenceforth deals altogether with the master or owner of the vessel, without refer- ence to the officers of the customs. The act of Con- gress was never intended to interfere with the regular course of dealing between the owner of the ship and the owners of her cargo. The policy of all such enact- ments is to leave the respective rights of the parties unimpaired, and their duties unaltered. (Wilson v. Ky-

mer 1, Maule and Selw. 167. Holt on ship. 395-6. Northey v. Field 2, Esp. 613. Nix v. Olive, Abbott on ship. 393.) The duties once secured, the goods on board are no longer in the custody of the law. Where the consignee does not take out his permit, the goods may indeed be said to remain in the custody of the law. But, even then, the possession of the law is the posses- sion of the ship owner for all purposes, except the mere collection of the duties, until the actual receipt of the goods by the consignee or on his behalf. The lien for the freight continues even after the goods are ware- housed in the Custom House; so the consigner may stop them in transitu. This is quite irreconcilable with the idea of their having been delivered.

In reply the counsel for the plaintiffs in error said that the question, what constitutes the performance of a carrier's contract, must depend upon principles very different from those which govern the doctrine of stop- page in transitu. The analogy contended for on the other side would not help their case if pursued in all its consequences. For instance, a delivery of part of the goods carried is for all purposes of the law of stoppage in transitu, equivalent to a delivery of the whole. Now while we do not claim the benefit of such an absurdity as the extension of this rule to the case of a carrier, we also protest against the argument that the termination of the transitus for the purposes of stoppage is in all cases to determine the question, whe- ther a carrier's duty is ended. Suppose the goods burnt in the Custom House, is it contended that the ship owner would be answerable? If not, where shall we draw the line? The argument proves too much, since, if good for any thing, it must needs result in these conclusions ..

So it is said, that after the goods are landed the car- rier has a right to retain (or more properly resume) the possession for the purpose of collecting his freight. He undoubtedly has the right, but like. every other right, it may be waived by the party for whose benefit it is exerciseable. Now suppose he does waive it, is he to continue nolens volens in possession by construc- tion of law? Surely not! But on the other hand, sup- pose he chooses to exercise the right, does it follow that the goods are therefore to remain at all events in his custody as carrier? If, afterthe carrier's duties are com- plied with, the thing carried remains in his possession, he does not continue to hold it as carrier, but becomesa bailee of another deseription. As such, he is not lia- ble for accidental loss, as a carrier would be, and as here contended on the other side (Garside v. Trent 4, T. R. 581. In re. Webb and al: 8 Taunt. 443.)

If the object of the cargo book be, as in the case stated, the information only of the ship owners, it cannot op- erate so as to superinduce or create a liberality on his part, which the law would not otherwise recognize. This is a necessary check in his hands upon the the of- ficers of the customs, as well as upon those of the ves- sel. It is a memorandum made to correspond in sub- stance with a part of the entry in the book of the inspec- tor on board prescribed by the act of Congress. With- out it the ship owner could not ascertain whether the bills of lading were true or false; whether the goods mentioned in the manifest were, or were not, on board the vessel when she arrived, what progress was making towadrs completing the unlading, nor could he take proper measures to collect the freight. It would seem that the cargo book in this case contains no entry about the crate in question. But this is immaterial to the de- cision, because it is expressly found that in this crate was actually landed on the wharf, which is all that the law requires.

The definition of the bill of lading should be some- thing more than a bare repetition of the words it con- tains. Every contract expressed in formal terms must include a designation of the party to whom its perform- ance is promised and of the party to whose benefit such performance is to inure. By the bill of lading the car-

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rier promises to deliver safely to the Consignee or his Assigns. Then what is the delivery to him or his As- signs? The answer is, the depositing the goods carried at their destined port at the usual place of landing them. As to the case in 15 Johns, 39, the report is not very clear upon the fact whether the consignee had had no- tice of the sloop's arrival at Albany, but the Counsel and the Court appear to have taken it for granted that he. had not had such notice. Now as this was the case of a coasting vessel, the consignee was entitled to expect no- tice of her arrival (4 Pick. 371) although we have seen that it is otherwise with ships from foreign countries .- Uuless this were the ground of decision the case may be denied to be law. The most authorative definitions of the contract'of affreightment do not by any means in- clude the alleged essential of an actual manuel tradition to the freighter or his agent. The bill of lading has been described as "merely an undertaking to carry from port to port"(5 T. R. 397 per Butler, J. Jeremy, 66.) In Beawes 114, there is an appropriate definition. He there says of charter party, "It settles the agree- ment as the bills of lading do the contents of the cargo, and binds the Master to deliver them well conditioned, AT THE PLACE OF DISCHARGE according to the agree- ment."

The opinion of the Court was delivered as follows, by ROGERS, JUDGE,-The substance of a bill of lading is a formal acknowledgment of a receipt of goods and an engagement to deliver them to the consignee or his assigns. And this suit is brought on an alleged breach of such a contract in the non-delivery of a crate of mer- chandize shipped on board the ship Lancaster from Liverpool, and consigned to Raphael Cordova in the us- ual form. The goods were landed on the wharf of the Liverpool Packets, and whether this amounts to a de- livery to the Consignee is the principal question. It must be conceded that by the general custom, the lia- bility of ship owners is at an : end when the goods are landed at the usual wharf, and this seems to be taken by the whole court as a position not open to dispute in the strongly contested case of Hyde vs. The Trent and Mersey Navigation Company. 5 T. R. 394. 3 Wilson 429. 15 Johnr 41. 2 Wm. Black. 916. 4 T. R. 581.

The usage in France, although not uniform in every particular, goes to the whole extent of the English doc- trine. At Rochelle, when the vessel is moored at the wharf, the merchant freighters at their own expense and risk, have their merchandize deposited upon the deck of the vessel. From the time when they reach the deck, it is the business of the hands on board to receive and place them in their proper situation. In unlading, the freighters have them taken in like manner from the deck by their porters, to lower them to the wharf, from which time they are at the Merchant's risk, without any liability on the part of the master of the vessel, if they happen to sustain damage as they are lowered from the vessel. At Marseilles it is the business of the master to put the merchandize on the wharf, after which he is discharged. 1. Valin 510.

the merchandize to the warehouses, by introducing ar- ticles into one which ought to have gone to another .- The error is almost always discovered by ascertaining what parts of the cargo of the vessel have been convey- ed to the different warehouses. But if it happens, says the commentator, that the error cannot be dis- covered, the master is always discharged when it ap- pears by the list of the officers of the Royal customs that he has caused all the merchandize in his bills of landing to be placed on the wharf. The Ordinances of Rochelle and Marseilles are the text from which, in the manner of our own commentators, he proceeds to deduce the general custom. I understand fromthe observations ofthe commentator, that the usage is not confined to Ro- chelle and Marseilles, but that in France, as in Great Britain, it is co-extensive with the limits of the King- dom; and in this country we are not without authority to the same purpose. The usage has bsen found to pre- vail in a sistercity, as appears from a case the name of which is not now recollected, lately determined by Judge Irving, in New York. The same point has also been ruled by the Supreme Court of Massachusetts, in Chickerings vs. Fowler, 4. Pick. 371. A promis by a master of a vessel to deliver goods to a consignee does not require that he should deliver them to the consignee personally, or at any particular wharf. It is sufficient if he leaves them at some usual place of unlading, giv- ing notice to the consignee that they are so left.

There is an obvious policy in commercial nations con- forming to the usage of each other, and it is also import- ant that there be a uniformity of decisions in our do- mestic tribunals on mercantile questions. As there will be great convenience in the local usage conforming to the general custom, is will be incumbent on those who maintain the contrary, to make the exception from the rule plainly appear.

In unloading a vessel in the port of Philadelphia, it is usual as soon as articles of bulk, such as crates, are brought upon deck, to pass them over the side of the ship, and land them on the wharf. The owners station a clerk on the wharf, who takes a memorandum of the goods, and the day they are taken away, and this for the information of his employers. A manifest or report of the cargo is made by the master, and deposited at the Custom House, and the collector, on the arrival of the vessel withiu his district, puts and keeps on board one or more inspectors whose duty it is to examine the con- tents of the cargo and superintend its delivery. And no goods from a foreign port can be unladen or delivered from the ship in the United States but in open day, be- tween the rising and setting of the sun, except by spe- cial license; nor at any time without a permit from the the Collector, which is granted to the consignee upon payment of duties or securing them to be paid. The holders of a bill of lading are presumed to be well in- formed of the probable period of the vessel's arrival, and at any rate such arrival is matter of notoriety in all maritime places. The consignee is previously informed of the shipment, as it is usual for one of the bills of la- ding to be kept by the merchant, a second is transmit- ted to the consignee by the post or packet, whilst the third is sent by the master of the ship together with the goods. With the benefit of all these safeguards, if the consignee uses ordinary diligence, there is as little dan- ger in this country as in England and France, of incon- venience or loss, whereas the risk would be greatly in- creased if it should be the duty of the ship owner to see to the actual receipt of the goods, and particularly in the case of a general ship with numerous consignments on board, manned altogether by foreigners unacquainted with the language at the port of delivery. I have ta- ken some pains to ascertain the opinion and practice of merchants of the city on this question, which is one of general concern. My inquiries have resulted in this, that the goods, when landed, have heretofore been con- sidered at the risk of the consignee, and that the gen-

And this rule of the French commercial code is cited with approbation by the learned commentator, in page 636 of his treaties on the Marine Ordonnance. As the master, in conformity with the prevailing usage in this respect, upon his arrival deposits in the Custom House a manifest or general list of his cargo, with a designation of all the individuals to whom each parcel of the mer- chandize should be respectively delivered, and as there are always officers of the customs who attend to the un- lading, to superintend and make a list of all the merch- andize which leaves the vessel, for the purpose of ascer- taining whether the manifest of the cargo which has been furnished is accurate and faithful, and by this means the list of these officers constitute a proof of the landing of the merchandize, it is the end of the engagement which the master lias contracted by the bill of lading. If then disputes arise, it is only when in the bustle of a hasty.dis- charge mistakes occur on the part of those who convey | ral understanding has been that the liability of the ship

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owner ceases upon the landing of the goods at the usu- al wharf. I see no reason to depart from a rule which has received such repeated sanctions, from which no in- convenience has heretofore resulted, and which it is be- lieved in practice has conduced to the general welfare.

If the special verdict had found a uniform usage in the one way or the other, we should have held ourselves bound by the custom, for I fully accede to the princi- ple that the mode of delivery is regulated by the prac- tice of the place. The contract is supposed to be made in reference to the usage at the port of delivery. But if no usage had been found, we hold it to be equally clear, that we should be governed by the general cus- tom.

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The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. III, Part 79

Author: Hazard, Samuel, 1784-1870 Publication date: 1828 Publisher: Philadelphia : Printed by W.F. Geddes ; Number of Pages: 440

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440