DeCourcy, J.
On December 13, 1918, the plaintiff shipped from Taunton, Massachusetts, “ one carload scrap iron,” consigned to Midvale Steel and Ordnance Company, Coatesville, Pennsylvania. A reasonable time for delivery at said destination was not later than two months. The shipment was loaded into a “ sideboard flat ” car: that is, a flat car open at the top, with wooden sides and ends about four feet in height. The plaintiff placed at one end of the car sheet iron scrap, which was tied up in bundles; at the other end skeleton scrap, so called, which was tied up in bales; and in the middle of the car small particles, known as tack or nail scrap. While the car was in transit and on the lines of the Pennsylvania system, it became reasonably necessary to transfer the contents. The iron was loaded into a battleship hopper car, which, it could be found, was not adapted to the carriage of scrap iron; and in the transfer the fine scrap was loaded on top and mixed in with the other material, so as to render the lading unmarketable and worthless. The consignee refused to accept delivery; and the plaintiff declined to take it on its return to Taunton, about February 19, 1919.
The plaintiff, by writ dated January 9, 1920, brought an action of contract against the New York, New Haven and Hartford Railroad Company, “ controlled and operated by the United States Railroad Administration.” The plaintiff’s motion to substitute James C. Davis, Agent, as party defendant, was allowed in September, 1922. On October 7, 1922, an order of notice issued and was served upon one Astley, the division superintendent; service on whom would have been good in an action against said railroad company. The defendant Davis appeared specially on November 6, 1922, and filed a motion to dismiss. This motion was denied, subject to the defendant’s exception. At the subsequent trial on the merits, the judge directed a verdict for the defendant and reported the case to this court.
[263] As the cause of action in this case arose during federal control of the railroad, it is now settled that the action should have been brought against the government and not against the railroad company. Missouri Pacific Railroad v. Ault, 256 U. S. 554. Nominsky v. New York, New Haven & Hartford Railroad, 239 Mass. 254. The contention of the defendant, that the representative of the government cannot be made a party by substitution in any case where the action originally was wrongly brought against the railroad company, is contrary to recent decisions of this court. Aetna Mills v. Director General of Railroads, 242 Mass. 255. Genga v. Director General of Railroads, 243 Mass. 101, 110, 111. Director General of Railroads v. Eastern Steamship Lines, Inc. 245 Mass. 385.
The defendant further contends that in no event can substitution be had later than two years after the end of government control. It is true that § 206 (a) of transportation Act, 1920 (41 U. S. Sts. at Large, 461), provides that after the termination of federal control, actions arising out of the operation of the railroad while under such control should be brought “ within the periods of limitation now prescribed by State or Federal statutes but not later than two years from the date of the passage of this Act.” But that subsection purports to deal only with the time within which actions may be commenced, where the cause thereof arose during federal control and no action was brought during that period. In the case at bar, the action was begun January 9, 1920, almost two months before the termination of federal control. The subsection of the Transportation Act here applicable is 206 (d), which provides that such actions “ pending at the termination of Federal control shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the agent designated by the President under subdivision (a).” This subsection contains no time limitation. De Witt v. New York Central Railroad, 196 N. Y. Supp. 870. Henry v. New York Central Railroad, 204 App. Div. (N. Y.) 491, 494. Hanlon v. Davis, 276 Penn. St. 113, 118. Even if § 206 (a) were applicable, the Massachusetts law as to amendments does not regard such [264] substitution as the commencement of a new action, and it would have been within the discretion of the trial court to allow the substitution despite the fact that more than two years had elapsed since the termination of Federal control. Aetna Mills v. Director General of Railroads, supra. Genga v. Director General of Railroads, supra. G. L. c. 231, § 138. In view of the Act of March 3, 1923, (U. S. St. 1923, c. 233,) amending Transportation Act 1920, § 206, we deem it unnecessary to consider the Act of Congress, February 8, 1899 (U. S. Comp. St. § 1594), limiting the time for substitution of a successor in office. See Sack v. Davis, 245 Mass. 114; Director General of Railroads v. Eastern Steamship Lines, Inc. supra. We are of opinion that the motion to dismiss was denied rightly
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DeCourcy, J.
On December 13, 1918, the plaintiff shipped from Taunton, Massachusetts, “ one carload scrap iron,” consigned to Midvale Steel and Ordnance Company, Coatesville, Pennsylvania. A reasonable time for delivery at said destination was not later than two months. The shipment was loaded into a “ sideboard flat ” car: that is, a flat car open at the top, with wooden sides and ends about four feet in height. The plaintiff placed at one end of the car sheet iron scrap, which was tied up in bundles; at the other end skeleton scrap, so called, which was tied up in bales; and in the middle of the car small particles, known as tack or nail scrap. While the car was in transit and on the lines of the Pennsylvania system, it became reasonably necessary to transfer the contents. The iron was loaded into a battleship hopper car, which, it could be found, was not adapted to the carriage of scrap iron; and in the transfer the fine scrap was loaded on top and mixed in with the other material, so as to render the lading unmarketable and worthless. The consignee refused to accept delivery; and the plaintiff declined to take it on its return to Taunton, about February 19, 1919.
The plaintiff, by writ dated January 9, 1920, brought an action of contract against the New York, New Haven and Hartford Railroad Company, “ controlled and operated by the United States Railroad Administration.” The plaintiff’s motion to substitute James C. Davis, Agent, as party defendant, was allowed in September, 1922. On October 7, 1922, an order of notice issued and was served upon one Astley, the division superintendent; service on whom would have been good in an action against said railroad company. The defendant Davis appeared specially on November 6, 1922, and filed a motion to dismiss. This motion was denied, subject to the defendant’s exception. At the subsequent trial on the merits, the judge directed a verdict for the defendant and reported the case to this court.
[263] As the cause of action in this case arose during federal control of the railroad, it is now settled that the action should have been brought against the government and not against the railroad company. Missouri Pacific Railroad v. Ault, 256 U. S. 554. Nominsky v. New York, New Haven & Hartford Railroad, 239 Mass. 254. The contention of the defendant, that the representative of the government cannot be made a party by substitution in any case where the action originally was wrongly brought against the railroad company, is contrary to recent decisions of this court. Aetna Mills v. Director General of Railroads, 242 Mass. 255. Genga v. Director General of Railroads, 243 Mass. 101, 110, 111. Director General of Railroads v. Eastern Steamship Lines, Inc. 245 Mass. 385.
The defendant further contends that in no event can substitution be had later than two years after the end of government control. It is true that § 206 (a) of transportation Act, 1920 (41 U. S. Sts. at Large, 461), provides that after the termination of federal control, actions arising out of the operation of the railroad while under such control should be brought “ within the periods of limitation now prescribed by State or Federal statutes but not later than two years from the date of the passage of this Act.” But that subsection purports to deal only with the time within which actions may be commenced, where the cause thereof arose during federal control and no action was brought during that period. In the case at bar, the action was begun January 9, 1920, almost two months before the termination of federal control. The subsection of the Transportation Act here applicable is 206 (d), which provides that such actions “ pending at the termination of Federal control shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the agent designated by the President under subdivision (a).” This subsection contains no time limitation. De Witt v. New York Central Railroad, 196 N. Y. Supp. 870. Henry v. New York Central Railroad, 204 App. Div. (N. Y.) 491, 494. Hanlon v. Davis, 276 Penn. St. 113, 118. Even if § 206 (a) were applicable, the Massachusetts law as to amendments does not regard such [264] substitution as the commencement of a new action, and it would have been within the discretion of the trial court to allow the substitution despite the fact that more than two years had elapsed since the termination of Federal control. Aetna Mills v. Director General of Railroads, supra. Genga v. Director General of Railroads, supra. G. L. c. 231, § 138. In view of the Act of March 3, 1923, (U. S. St. 1923, c. 233,) amending Transportation Act 1920, § 206, we deem it unnecessary to consider the Act of Congress, February 8, 1899 (U. S. Comp. St. § 1594), limiting the time for substitution of a successor in office. See Sack v. Davis, 245 Mass. 114; Director General of Railroads v. Eastern Steamship Lines, Inc. supra. We are of opinion that the motion to dismiss was denied rightly
As to the merits: On the facts shown the defendant was responsible for the damage to the shipment unless he was relieved from the common law liability by the terms of the bill of lading, or the damage was due to the act or default of the plaintiff itself. The bill of lading is a receipt of the quantity and description of the goods shipped, and a cotitract to transport and deliver them as specified in the instrument. Hastings v. Pepper, 11 Pick. 41. The mere description “ one carload scrap iron ” did not necessarily import that the contents of the car could be mixed or mingled without damage. The owner as one of the contracting parties had a right to judge for itself what arrangement in the car was best adapted for the carriage of its goods. And, while the defendant presumably might have refused to accept the iron for shipment if not satisfied with the packing and position adopted by the shipper, he did not do so, but accepted the carload with full knowledge on the part of his employees of the nature and arrangement of its contents. Hastings v. Pepper, supra. The manner in which the loose scrap was confined .between bundles of sheet iron scrap and bales of skeleton scrap might well charge the carrier with notice that the division was not random but made with a definite design, and that he should, handle the shipment accordingly. Noble v. American Express Co. 234 Mass. 536. Colbath v. Bangor & Aroostook Railroad, 105 Maine, 379. In [265] fact the plaintiff loaded the car, and presumably it was intended that the consignee, and not the defendant, should unload it. So far as appears the shipment as arranged would have gone through without damage but for an intermediate reloading of this bulky freight, weighing more than a hundred thousand pounds: a reloading which apparently was not contemplated by the parties. There was evidence for the jury that the damage complained of was due to the failure of the defendant to provide a suitable car, or the negligence of the employees in unloading and reloading, or both. Pratt v. Ogdensburg & Lake Champlain Railroad, 102 Mass. 557, 567. And, if the goods were received for shipment in good order, the burden was on the defendant to prove that their damaged condition on arrival was due to causes for which he was not legally responsible. Hastings v. Pepper, supra. Ideal Lumber Goods Co. v. Eastern Steamship Corp. 220 Mass. 133, 135.
The case should have been submitted to the jury. In accordance with the report judgment is to be entered for the plaintiff in the sum of $400.
So ordered.