Marquardt v. French

• Citation: 53 F. 603
• Parties: MARQUARDT et al. v. FRENCH. [1]
• Decision Date: 05 January 1893
• Court: U.S. District Court — Southern District of New York

53 F. 603

MARQUARDT et al. v. FRENCH. ^[1]

United States District Court, S.D. New York.

January 5, 1893

George A. Black, for libelants.

Wing Shoudy & Putnam, for respondent.

BROWN District Judge.

The respondent for some 10 years past has been engaged in the business of common carrier of merchandise in New York and Buffalo, and as a forwarder from that port to western ports. His business is transacted in the name of the Union Transit Company, having his principal office in Buffalo, and a branch office in this city in charge of Mr. Demarest. On the 19th of November, 1891, Mr. Demarest issued to the libelants a bill of lading reciting the receipt by the Union Transit Company in apparent good order, of 1,800 barrels of cement, which that company agreed 'to forward by its own or other means of transportation,' subject to all the conditions therein contained, 'to Milwaukee, Wis.,' 'to be delivered at the dock of the Western Lime and Cement Company,' 'upon payment of freight at the rates named' in the bill of lading. The bill of lading, when delivered to the libelants, had indorsed upon it the following stamped mark 'Insured, Buffalo to Mil. $5,400 00-100 a premium paid ' In this stamp 'Mil. and '5,400' were writing; the other words were printed.

The libel charges that the above-described stamp constituted a contract of insurance between the respondent and the libelants. The libel, referring to the terms of the bill of lading, alleges that the respondent 'at the same time and by the same instrument (bill of lading) insured said property from Buffalo to Milwaukee, valued at the agreed value of $5,400. ' A loss on the lakes having occurred which was treated as total, the libelants further contend that this stamp was equivalent to a valued marine policy, whereby the libelants became entitled to recover the agreed value, $5,400, although that sum considerably exceeds the actual value of the property, and the actual loss which the libelants have sustained. Under the stipulation and deposit of moneys arranged between the parties, I find that the libelants have received all their actual loss. They claim a balance of $985.50 against the respondent personally as an insurer by express contract upon a valued policy for $5,400.

I cannot sustain the interpretation of the stamp, or that of the preceding negotiations between the parties, for which the libelants contend. The respondent was not in the insurance business and never had been. His business was only that of a carrier and forwarder. The bill of lading itself so imported. There was nothing in the circumstances or in the negotiation of the parties that gives any countenance to the idea that Mr. Demarest meant to become an insurer himself, or to charge his principal as an insurer, at the time when the bill of lading was stamped and issued; nor anything to indicate that the libelants then expected either Mr. Demarest or the respondent to be an insurer of the cement. Mr. Demarest evidently had no actual authority to enter into any express contract of insurance to bind the respondent; and I see nothing in the circumstances which could have led the libelants to suppose that he had any such authority.

It was, however, customary, as was well known to the libelants, for carriers and forwarders, on receiving goods on a through bill of lading, to undertake to procure insurance for the shipper. The practice here in that regard has been, as the evidence shows, for the carrier's agent to attend to such business as a personal perquisite, and for the shipper's convenience; and to give a certificate of such insurance to the shipper, when the amount of insurance was considerable, say for $10,000 or upwards; but to indicate that insurance was to be obtained in smaller amounts, by putting an insurance stamp upon the bill of lading. The stamp most commonly used states the company in which insurance has been or is expected to be effected. On the day this bill of lading was issued, Mr. Demarest effected insurance on the cement for the sum of $5,400 in the Atlantic Mutual Company, in the usual form of the open policy issued by that company, in the name of Mr. Onderdonk, 'for account of whom it might concern,' but intended for the libelants. The stamp put on the bill of lading did not state the company, because, as Mr. Demarest said, he had no stamp containing that company's name. The libelants were well acquainted with the use of these stamps, with the name of the insurance company inserted, as they had shipped quite a number of consignments previously during the same year upon bills of lading stamped in that manner.

When this bill of lading was...