American Transp. Co. v. Moore

• Decision Date: 14 July 1858
• Court: Michigan Supreme Court
• Parties: The American Transportation Company v. Franklin Moore and others

5 Mich. 368

The American Transportation Company v. Franklin Moore and others

Supreme Court of Michigan

July 14, 1858

Heard May 28, 1858; May 29, 1858; June 1, 1858; June 2, 1858 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne Circuit.

The plaintiff in error was sued by the defendants in error, in an action of assumpsit, for the non-delivery of certain goods entrusted to the plaintiff in error, in New York, to be transported to the defendants in error, in Detroit, by way of Buffalo and lake Erie.

The evidence shows the following facts:

The plaintiff in error was a common carrier, having its business office in New York, and engaged in transporting goods for hire from New York to the western cities, by way of Hudson river, the Erie canal, and the lakes. Prior to shipping any goods, Mr. Foote, one of the defendants in error, called at the office of the plaintiff in error, in New York, to ascertain the terms upon which he could get his goods transported, and had an interview with one Caldwell, an agent of the company. Caldwell, in reply to Foote's inquiry, filled out a blank printed form of contract used by the company, and exhibited it to Foote, as containing the terms upon which the company would transport his goods. This contract bound the company to carry all goods offered, and fixed the rate of transportation at 40 cents per 100 lbs. for heavy goods, and 45 cents per 100 lbs. for light goods, to the end of the season, "subject to any advance of lake freights" after a certain date; and the shipper bound himself to deliver all goods he would have for transportation to the end of the season; and, in consideration that the rates of freight therein fixed were one dollar per ton less than was charged in the absence of such special contract, the shipper agreed to exempt the company from loss and damage to all goods insured, dangers of navigation on the lakes and rivers, damage by collision and fires, etc.

Foote examined the paper, and objected to the clause providing for an advance of lake freights, and also to the classification of "nuts" as light goods. Caldwell consented to amend the contract in those particulars. Foote then objected to those clauses which exempted the company from liability for loss, etc., by the dangers of lake navigation, by collision and fires, and on goods insured. Caldwell declined to alter the contract in those respects; explained their object to Foote, and told him that the company "would not make any variation from the printed form of contract, except in the two matters already stated;" and Caldwell testified that he never agreed to waive any other provision, or gave Foote to understand that he would. Foote refused to sign the contract, but informed Caldwell that he would ship some of his goods by the company's line, and then Caldwell agreed to carry what goods he should ship, at the same rate (40 and 45 cents), subject to no advance of lake freights, and classing nuts as heavy. Caldwell, at Foote's request, gave a written memorandum to that effect; which memorandum, Caldwell testifies, "had reference to the rate of freight, and nothing else." Afterwards, Foote directed the merchants of whom he bought his goods, to forward them by the company's lines, and they did so.

On the delivery of the goods by the respective merchants to the company's agent, for shipment, receipts, or bills of lading, were given for different portions of the goods, in two different forms. The first form was a simple receipt, acknowledging the delivery of the goods, by the merchants, in good order, and setting forth the mark and destination, viz., to the plaintiffs below at Detroit. These receipts were not signed by the company's agent, but stamped with the words "Receipt given at 64 Pearl st.," which was the business office of the company; and no application was ever made at that office for any other receipt or bill of lading. For all the other goods similar stamped receipts were given, but those papers were taken by the respective shippers, to the office, and there exchanged for receipts, or, more properly, bills of lading, in the following form: They acknowledged the receipt of the goods from the merchants, in good order, "to be forwarded to the lake port of Detroit, the loss or damage from the dangers of lake and river navigation, collision and fire, at the risk of the owner of the goods."

It was admitted, on the trial, that these goods, while in the course of transit to Detroit, were shipped on board the steamboat M. B. Spaulding, one of the company's boats, at Buffalo, to be carried by way of lake Erie and Detroit river, to Detroit; that, while lying in the port of Buffalo, a fire broke out on board the steamboat, which destroyed the boat itself and all these goods, and that the fire arose from some unknown cause (probably spontaneous combustion), without any negligence or fault on the part of the company or its agents.

The defendant's counsel asked the court to instruct the jury as follows:

1. If the jury shall believe that Foote and Caldwell made a special contract, yet, if the merchants who shipped the goods afterwards accepted bills of lading varying that contract, such subsequent action binds the plaintiffs, and is a new contract by the plaintiffs' agents.

2. That if the jury believe, from the evidence, that the plaintiffs directed the merchants in New York, of whom they bought the goods, to forward them by the defendant's line, and the merchants did so, and, on delivery of the goods to defendant's agent, accepted bills of lading, or shipping receipts, therefor, containing a clause exempting the defendant from risks of fire, then their acceptance binds the plaintiffs, and the plaintiffs can not recover for any goods included in such bills of lading, or receipts.

3. If the jury believe, from the evidence, that in the contract between Caldwell and Foote, no positive provision was made as to risks, and that the contract was silent on that point, then the subsequent delivery, on the receipt of the goods, of bills of lading, or shipping receipts, containing a clause exempting the defendant from the risk of fire, and the acceptance of such receipts, or bills of lading, by the merchant who sold and shipped the goods to plaintiffs, was a contract binding upon the plaintiffs.

4. That if the jury believe, from the evidence, that the plaintiffs' goods were on board the propeller M. B. Spaulding, and were destroyed by means of a fire happening on board said vessel, without any default of the defendant, and that the propeller was owned by the defendant, and was used principally in navigating between the cities of Buffalo and Detroit, by the way of lake Erie, then such propeller was not used in river or inland navigation, and the defendant is exempted from liability for said goods, by virtue of the provisions of the first clause of the first section of the act of congress, approved March 3d, 1851, entitled "An act to limit the liability of ship owners, and for other purposes."

Which instructions the court refused to give; to which refusal the defendant excepted.

Thereupon, the plaintiffs requested the court to instruct the jury, as follows:

1. The general liability of the carrier, independent of any special agreement, renders him chargeable as an insurer of the goods, and accountable for any loss or damage that may happen to them in the course of the conveyance, unless arising from the act of God or the public enemy.

2. The burden of proof lies on the carrier; and nothing short of an express stipulation, by parol or in writing, will discharge him from the duties the law imposes. The exemption from these duties can not depend upon any implication or inference founded on doubtful and conflicting evidence, but must be specific and certain, leaving no room for controversy between the parties.

3. That if the jury find that the contract between the parties was reduced to writing, and is embodied in the entry on the card and the entry on the defendant's books, then that the conversation of the parties in relation thereto, preceding the making of the contract and at the time thereof, can not be received to contradict or to vary the same.

4. That act of congress of 1851 has no applicability to the case, inasmuch as the "Spaulding" was engaged in inland navigation.

5. That the rule of damages is the value of the goods at the place of destination.

The Circuit Judge charged substantially as requested by plaintiffs; and the defendant having excepted to the charge, the case, after verdict and judgment for plaintiffs for the value of the goods, was brought to this court by writ of error accompanied by bill of exceptions.

Judgment reversed, and new trial granted.

Towle, Hunt & Newberry, for plaintiff in error:

The navigation of lake Erie is not "inland navigation" within the meaning of the act of congress: 1 Conkling's Admiralty, 209 to 213.

The word "inland" being ambiguous, the intention of congress if it can be discovered, is to govern: Sedgw. Const. & Stat. L., 231. We contend that the word means within the limits of the United States--not inland as regards the American continent, but as regards our own country. Congress is legislating for the United States, and may be deemed to have had in view our own country, and that alone. If congress were legislating for the whole continent, or if the word were found in a treaty, or in the law of nations, the case would be different.

This statute was taken from British statutes on the same subject 26 Geo. III., chap. 86; 53 Geo. III., chap., 159. A similar phrase in the latter of these, beyond question refers...