Berry Coal & Coke Co. v. Chicago, Peoria & St. Louis Railway Co.

92 S.W. 714, 116 Mo. App. 214, 1906 Mo. App. LEXIS 139

• Court: Missouri Court of Appeals
• Decided: January 16, 1906
• Status: Published

Opinion

GOODE, J.

(after stating the facts). — No bill of lading or contract of affreightment was put in evidence, nor was there any proof regarding that contract. The answer, however, says the cement was delivered to the Steamer Seneca by the Lehigh Valley Railroad Company and the agreed, facts show it passed from the Seneca, or its owner, the Lehigh Valley Transportation Company, into the custody of the Atchison, Topeka & Santa Fe Railroad Company for further transportation, and then into the custody of the defendant. But it does not appear whether the reception of the property by the several carriers was under separate and distinct contracts between them and the Alpha-Portland Cement Company, as1 shipper, or under the original bill of lading between the consignor and the initial carrier, the Lehigh Valley Railroad Company. Neither is it shown that the different carriers had any traffic arrangement or association of interests1 which would warrant the holding that they received the cement, not as independent, but as connecting carriers. The waybills are before us, but a waybill is a very different document in legal effect, from a bill of lading. A waybill goes with the shipment and shows the routing, freight charges and such matters; whereas a bill of lading represents the property itself in many ways, contains the contract of affreightment and largely Axes the respective rights of the carrier, the shipper and the consignee. We grant that a waybill, thoug’h it is not the instrument which embodies the affreightment contract, might contain notations or statements which would tend to show the shipment was a through one and uphold the conclusion, as against the carrier which made the notations, that the different companies over whose lines the property had passed, transported it as connecting carriers. But the only reference to a connecting line on the waybills which accompanied the cement, refers to no1 line but the Leigh Valley Railroad Company. There is not a minute or notation of any kind to show the Lehigh Valley Transportation Company was a connecting carrier with the defendant and the other railway lines over which the property was conveyed. .Beyond the reference on the waybills to the Lehigb Valley Railroad. Company, we know nothing of the relation to each other of the several companies which handled the cement, either in their general business or in respect of the particular shipment. For aught that is shown, the company which owned the Seneca may have acted independently in transporting the shipment and pursuant to a separate contract between it and the consignor. To hold a final carrier liable for defaults by previous carriers in the performance of the contract of carriage, on the theory that the final carrier was a connecting one and handled the property under the original contract of affreightment, some evidence to that effect must be adduced. [Wyman v. R. R., 4 Mo. App. 35; Nanson v. Jacob, 12 Mo. App. 125, 93 Mo. 331, 6 S. W. 246; Shewalter v. R. R., 84 Mo. App. 589; White Com. Co. v. R. R., 87 Mo. App. 330.] This was an interstate shipment and not governed by the Missouri statutes, the property having been received by the first carrier outside of this State. The defendant received the property in question from an intermediate carrier, with a positive direction not to deliver it to the consignee until the latter executed the general average bond in favor of another intermediate carrier, the Lehigh Valley Transportation Company. The position taken by the plaintiff is that it was not bound to sign the bond, because the stranding of the steamer Seneca in the St. Clair river was due, not to a peril of navigation, but to* the negligence of the owners or the crew of the vessel. The cause of the grounding of the steamer was the failure of its steering gear to work. The argument is that this failure was a circumstance from which the court, as trier of the fact, was justified in drawing the inference that the accident to the vessel was due to negligence for all the consequences of which the owners of the vessel were responsible; not to a maritime peril which entitled those owners to general average from the owners of the cargo toward defraying the expenses incurred in rescuing the vessel and making such repairs on it as are subject to general average. A great deal is said in the briefs on the question of whether as matter of law, such an accident is regarded as one resulting from a peril of navigation, or may be found as a fact to have been due to negligence. We deem it unnecessary to go into that question; because, in our opinion, the right of the defendant to exact the average bond of the plaintiff before delivering the cement, does not depend on it. It is the law that the owner of a vessel cannot enforce contribution in the nature of general average, from the owners of the cargo, to defray expenses incurred in rescuing the vessel from a peril encountered, not as incident to navigation, but from bad seamanship, or from the vessel being unseaworthy. [Lowndes, Gen. Av. (5 Ed.), sec. 4 p. 28, et seq.; Conrad v. DeMontcourt, 138 Mo. 311, 39 S. W. 805.] If the Seneca had canned the cement to destination, and the dispute over the average bond had arisen between its owners and the plaintiff, the question of whether the ship and cargo were endangered by a maritime peril or by defective construction or unskilful handling, might be decisive of the owner’s right to exact an average bond. We do not say it would be even then; for the point is irrelevant under the facts and we need not decide it. Now there can be no doubt, that the owner or master, of a ship is entitled to contribution from the owners of the cargo, toward paying expenses incurred in saving the ship and cargo from destruction by perils solely incident to navigation and unmixed with negligence on the part of the owner or the crew. [Lowndes, Gen. Av., sec. 1, p. 19.] For such contribution the ship owner has a lien on the cargo. [Id., sec. 77, p. 327, et seq.] It follows that if the Seneca fell into peril as a natural incident of her voyage, her owner was entitled to general average from the various owners of •the cargo toward making up the expense necessarily incurred in saving her and the cargo, and had a lien on each portion of the cargo for its proportion of the expense. The methods of enforcing this lien are requiring a deposit of money or an average bond from the respective owners of the cargo, before their goods are delivered. The usual mode nowadays is by taking an average bond. [Lowndes, chap. IX.] The custom of requiring such a bond, developed from the fact that when a rescued vessel arrives at destination, where the cargo ought to be delivered, the amount of contribution due from the different owners of the cargo cannot be ascertained at once, so that payment may be made before delivery. The amount due from each must be computed; and in order to retain to the shipowner the benefit of his lien pending the computation and to allow the consignees to get their goods at once, an average bond is taken from the consignees, by which they agree to pay their several portions of the expense when ascertained according to the rules governing general average. Sometimes a consignee may desire to make a deposit sufficiently large to cover his portion in any event, and this he may do. The consignee is further protected in that he cannot be compelled to execute an average bond containing unreasonable terms. [Conrad v. De Montcourt, supra.] In the present case the plaintiff offered no objection to the terms of the bond, nor did it ask to make a deposit in lieu of giving bond. Neither does it now prefer any objection to the bond further than that it could not lawfully be demanded, for the reason that the expense to which plaintiff was asked to contribute, was due to the negligence of the crew or owner of the steamer Seneca, and was not subject to general average. Indeed, within a fortnight after plaintiff had refused its signature to the bond, it wrote the defendant offering to sign if, meanwhile, the cement had not been injured by the high waters. .This demonstrates that plaintiff waived any objection to the terms of the instrument. Therefore it cannot maintain the position that it rightly refused to sign at first and the defendant wrongly refused to deliver the property until it signed, unless the law excused it from signing because the wreck of the Seneca was due to negligence and the expense thereby entailed fell exclusively on the owner of the vessel. If the defendant was not bound to investigate the causes of the disaster to the Seneca in order to ascertain whether it might withhold the cement until the bona was executed, we need inquire no further nor look into the question of the cause of the wreck. The defendant, as final carrier, knew nothing of the circumstances which gave rise to the demand by the Lehigh Valley Transportation Company for an average bond. If defendant had known as a fact, or had had good reason to believe, the wreck was due to the negligence of the crew in managing the vessel, or of the owner of the vessel in sending it on a voyage when unseaworthy, possibly defendant would have been bound to take notice that plaintiff could not be called on for general average contribution, and would have been guilty of conversion in withholding the cement from plaintiff until the bond was signed. [Steamboat Va. v. Kraft, 25 Mo. 76, 81; Wells v. Thomas, 27 Mo. 17; White v. Vann, 6 Humph. (Tenn.) 70, 73.] Defendant neither knew nor had reason to believe the disaster to the steamer was due to any cause which would invalidate the claim for contribution from plaintiff as owner of a portion of the cargo, but had every reason to believe the contrary. The bond contained recitals adapted to show the casualty was due to a natural maritime peril. These questions occur: When does the illegality of a lien claimed by a prior carrier against a shipment, entitle the consignee to demand the shipment from the final carrier without discharging the lien? To what extent, in ordinary circumstances, is the final carrier bound, at his peril, to ascertain the legali! y of the claim? What is the law concerning those matters in the special instance of a claim for general average? rI hose inquiries presuppose that the shipment was not sh:v,vn to have been transported under a through bill of lading and that the' different carriers were not shown tc constitute one connecting line by virtue of some traffic arrangement or association. This assumption is made, not because we hold it to be an essential element of the decision, but because the facts in the record justify it, and we wish our judgment to be no broader than the case requires. We answer in the first place that the charge for which the lien is asserted, must be one connected with the transportation of the property and essential to its conveyance from the point of shipment to destination; for it is only for such charges that a carrier’s lien exists. [Steamboat Va. v. Kraft, 25 Mo. 76.] If the charge of the previous carrier possesses this character, then the final carrier is justified in paying it and holding the property according to any lawful directions given for the enforcement of the lien, unless the final carrier has notice or knowledge that, in the particular instance, the charge is unlawful; either as being extortionate or for some other reason. We answer further that the final carrier must act in good faith toward the consignee; and it is for this reason that if he had knowledge or notice of the illegality of the charge by an intermediate icarrier, he will not be sustained in advancing it or enforcing the lien. [Armstrong v. Railroad, 62 Mo. App. 639.] It is not incumbent on the final carrier to investigate, at its own trouble and expense, the merits of an apparently just claim preferred by the preceding carrier. We apprehend that this would be true whether the lien was asserted by virtue of the law of the land, or of the sea, as in the case at bar, or of business usage, or of a habit of business between the parties. In the Armstrong case, supra, the plaintiff, a wheat buyer, had entered into an agreement with an elevator company, to clean, mix and load his wheat into cars for a stipulated charge. Under the arrangement, the defendant railroad company would stop plaintiff’s cars of wheat at the elevator, and when they were cleaned, the elevator company would return them to the railroad company. A great many cars had thus been handled, the railroad company paying the elevator company its charges for cleaning the wheat. In the course of the business, one car received from the elevator company by the railroad company was found, on reaching destination, not to have been cleaned by the elevator company. Thereupon the plaintiff refused to reimburse the railroad company the charge paid by it for the cleaning. After stating it to be a carrier’s duty to see that previous charges on property in transit are reasonable before paying them, the opinion declared the railroad company, as a common carrier, was under no duty to ascertain by inspection, before receiving the cars of wheat from the elevator company, whether the wheat ■had been cleaned; but in the absence of knowledge to the contrary, had the right to presume it had been.

A statute of this State gave a lien on a steamboat to a person furnishing supplies or stores under contract with a master or owner of the boat. [R. S. 1845, p. 98.] In defense of an action to enforce such a lien, it was contended that the party who contracted for the supplies was not the master or owner of the boat; but the Supreme Court held that the person furnishing them was not bound to investigate that matter on pain of forfeiting his lien. [Steamboat Lehigh v. Knox, 12 Mo. 508.] The decision is germane to the point in hand.

In White v. Vann, 6 Humph. 70, Vann had received from persons operating a railroad as lessees, property belonging to White, to be carried from the terminus of the railroad to Knoxville. Vann paid said lessees certain charges, claimed by them against the goods,, for freight transportation. There was proof of a custom on the part of interstate common carriers in the United States, to advance, for the benefit of the owners of the goods in transit, previous charges for freight and storage. But it appeared White had a contract with the lessees of the railroad, according to which said lessees had already been paid for transportation of said property. For this reason White asserted the lessees were entitled to no lien and that Vann was not justified in advancing the freight. At the trial the presiding jndge charged that Vann was entitled to be reimbursed for advances made by him for White’s benefit in payment of lawful charges on his goods, and that the special contract with the lessees did not vary his liability to Vann, unless the latter was informed, or had reasonable ground to believe, the special contract existed. It was held on review of the case by the Supreme Court of Tennessee, that this charge was right, as Vann had a right to rely on the- custom of the country in advancing the charges.

In Bowman v. Hilton, 11 Ohio 303, the action was replevin. Bowman shipped a lot of goods from Cleveland consigned to himself care of Forsyth & Hull, Maumee City, Ohio. Forsyth & Hull had relinquished business before the goods reached Maumee; wherefore they were deposited with another firm at that place, and by said firm sent to a firm at Providence, and thence shipped by a boat, of which Hilton, the defendant, was master, to Brunersburg. Hilton paid the charges from Cleveland to Brunersburg; that is, for transportation over the entire route. When the goods were taken from Hilton’s possession, they were found to- be damaged about one-third their value. Hilton claimed the right to retain them for the advances made by him. The trial court instructed, in effect, that Hilton was liable for such damage as occurred by his own negligence or that of some one with whom he was in partnership, but not for damage done by anybody else while transporting the goods. The court declared that, from the general course of business and the directions on the goods, Hilton had the right to receive them from his immediate consignor and presume the owner had authorized the consignment; and to entitle him to a lien for a commission and advances, the law imposed on him no duty beyond what a prudent man, under like circumstances, would have done in the management of his own business. The judgment of the lower court was affirmed.

In Bissell v. Price, 16 Ill. 408, Price, the plaintiff below, sued to recover advances made on certain merchandise received of J. H. Harmon & Cop who were forwarding merchants at Peru, and for freight due for transporting the merchandise from Peru to Peoria. When the goods were opened at the defendant’s store, they were found to be damaged; whereupon the defendant refused to pay Price his freight and the advances he had made to Harmon & Co. for antecedent charges. It appears the damage was done before the goods came into Price’s hands; and it was held on appeal, that he was not bound -to examine the goods before receiving them in order to ascertain their condition, because such a course of business would be impracticable; citing Angel, Carriers, sec. 231; Bates v. Todd, 1 Mo. & Rob. 186, and Warden v. Green, 6 Watts, 424. Speaking of the rule by which á succeeding carrier can pay the charges of a previous one, the opinion says the authority to make such payments extends no further than is reasonably required by the necessities of commerce; that in making such advances for the consignee, the carrier is bound to act in good faith and with ordinary prudence in ascertaining the goods to be in good condition and the previous charges reasonable; that when he has done this, he has done ali the law requires of him and the owner is bound to recognize and sanction his action in making the advances.

In Pearce v. Wabash R. R., 102 U. S. 179, it appeared that the plaintiff had shipped some boxes of curios from Japan to St. Louis in bond, the boxes not to be opened until they reached St. Louis, their destination. The purpose was to' protect the articles from frontier custom house inspection. A bill of lading accompanied the shipment, by which the different carriers were notified of the terms of the contract requiring the goods to be carried to St. Louis, the port of destination, before they were opened. An intermediate carrier, the Canadian Pacific Eailroad Company, for its own convenience, diverted the shipment to St. Paul where the custom house officers examined, the boxes and assessed tbe duty thereon at $264.31; which sum said railroad company paid in order to regain possession of the goods. The goods were afterwards delivered to another railroad company and by the latter to the Wabash Railroad Company, which carried them to St. Louis. Under its traffic arrangement the Wabash Company was responsible for the previous charges on the goods. It paid the charges and tendered the goods to the consignee at St. Louis on condition of the repayment of its advances, including the Federal imposts. If the goods had been transported to St.'Louis in bond, as they should have been, they would have been opened and examined there and retained by the custom house officers until the duty was paid. But as it was, on their arrival they were found to be broken and.damaged; wherefore the owner refused to pay the Wabash Company the charges advanced. Instead he replevied the property. That cause was first decided by this court in favor of Pearce, on the ground that the shipment was unlawfully diverted by the Canadian Pacific Company to St. Paul, instead of being carried in bond to St. Louis as the bill of lading required; and, therefore, the prepayment of duties at St. Paul was no necessary incident of the carriage; that, moreover, as each carrier was apprised of the contract by the bill of lading, and the goods had been damaged by a violation of the contract, every carrier into whose hands they came, had notice of the breach of the contract committed in diverting the goods from their bonded destination in St. Louis to' St. Paul, where they were subject to Federal inspection; that, hence the Canadian Pacific Railroad Company Was not justified in paying the duty at St. Paul, or the Wabash Company in holding the goods until the owner repaid those duties. After settling that the case involved a federal question and that import duties on goods in transit might properly be paid by a carrier, the Supreme Court of the United States held the Wabash Company was justified in paying the previeras charges, including the duty, and that if Pearce had been wronged by the change of the bonded destination by the Canadian Pacific Company, he had a remedy against said company, but could not refuse to pay the Wabash what it had advanced for him. It is true Pearce would have had to pay the duty in St. Louis and that the payment by the Wabash Company enured to his benefit; but it is true, too, that the contract had been breached, in its vital feature, by changing the bonded destination of the goods, and that if it had not been breached, there would have been no duty paid in St. Paul by the Canadian Pacific Company and, hence, no lien for the duty would have existed in favor of a subsequent carrier. The goods would simply have gone, as desired, to St. Louis and Pearce would have paid the duty there himself. But the essence of the decision so far as it bears on the present controversy, is that, though the charge for import duties arose from the tort of an intermediate carrier, the final carrier who had paid the charge in good faith and without knowledge of the facts out of which it arose, was entitled to retain the goods for reimbursement. This was equivalent to holding that á final carrier is not bound to investigate, at his own risk, the origin of a lien asserted against property in transit by a preceding carrier.

Accepting this as the law when the previous charges are for freight or other common services, we come to 'the ultimate question of whether a good reason exists for modifying the rule when the lien asserted is one of general average. Now, instead of there being any reason for modifying the rule in a case of the latter kind, there is this additional reason for upholding it; at least in the present case. The execution of a general average bond by the owner of part of the cargo of a vessel, does not conclude such owner from setting up in defense of liability on the bond, that the wreck occured from the negligence of the owner of the vessel and is not the subject of general average. This was directly held by the Supreme Court of Missouri in a carefully considered judgment by an accurate jurist. [See opinion by Barclay, J., in Conrad v. DeMontconrt, 138 Mo. 311 39 S. W. 805.] Perhaps in some particulars the execution of such a bond might compromise the rights of the owner of the cargo: but it does not in any way impair his right to resist payment of contribution on the ground that the expense to which he was asked to contribute, occurred from the unseaworthiness of the vessel or the crew’s lack of skill, or any other cause for which the law casts the entire loss on the owner of the vessel. Such a bond is intended as a temporary expedient, a modus mvendi; and, as said before, is resorted to in order that the property may be delivered promptly to the consignee without depriving the shipowner of the benefit of his lien for general average or the consignee of his right to show the loss was not subject to general average. This being true, the plaintiff would have been in no way prejudiced by signing the bond; hence it would be unreasonable to allow it to throw on the defendant the responsibility of saying whether negligence caused the shipwreck and whether the plaintiff could be compelled to contribute to the consequent expense. On its face the demand for the execution of the bond was just; for the right to exact a general average bond under such circumstances is given by law, and the terms of the bond presented for plaintiff’s signature were reasonable; or at least not questioned. Those terms did not attempt to commit plaintiff by an admission that the accident to the Seneca was due to a peril of navigation. The recital of the circumstances of the wreck purports only to be as “represented.” Plaintiff refused to sign because the disaster was not due to a peril of the sea; but this matter the defendant was not bound to investigate. It had the right to demand a bond before delivering the cement, and leave the question of the cause of the disaster to be settled between plaintiff and the owner of the vessel.

The result is that the plaintiff wrongly refused to execute the bond, and cannot now recover for the subsequent loss of the cement by an act of God while in the defendant’s custody.

We have been cited by respondent to certain cases in which carriers were denied a lien for transportation charges as against the owners of the freight, when the goods had been received for carriage, not from the owners or persons acting by authority, but from a tortfeasor who delivered the property for shipment contrary to the will and rights of the owners. [Firch v. Newberry 1 Doug. (Mich.) 11; Robinson v. Baker, 5 Cush. 137; Stevens v. R. R. Co., 8 Gray 262; Gibson v. Gwinn, 107 Mass. 126, Saltus v. Everett, 20 Wend. 267.] In our opinion the present controversy does not present the proposition determined in those adjudications.

The judgment is reversed and the cause remanded to be disposed of in accordance with this opinion.

All concur.