Canadian Pac. Ry. Co. v. Wieland

• Decision Date: 04 October 1915
• Docket Number: 2582.
• Citation: 226 F. 670
• Parties: CANADIAN PAC. RY. CO. v. WIELAND.
• Court: U.S. Court of Appeals — Ninth Circuit

226 F. 670

CANADIAN PAC. RY. CO. v. WIELAND.

No. 2582.

United States Court of Appeals, Ninth Circuit.

October 4, 1915

Rehearing Denied November 8, 1915.

The defendant in error brought an action to recover the value of goods delivered to the plaintiff in error for transportation from Antwerp, Belgium, to San Francisco, Cal. The goods were destroyed by fire while they were stored in the government warehouse at Antwerp, in the custody of the customs authorities of the kingdom of Belgium. A jury trial was waived, and the cause was tried before the court on an agreed statement of facts, the substance of which is the following:

The defendant is a corporation of the Dominion of Canada, having a place of business in San Francisco, and is a common carrier of goods for hire. It maintained an agency in the city of Antwerp, Belgium, in the sole charge of one Debenham, who for seven years had been its European continental traffic agent. It was his duty as such traffic agent to receive at Antwerp Belgium, to the extent that such shipments could be received by any one at Antwerp, pursuant and subject to the provisions of the International Treaty hereinafter referred to, and the laws of the kingdom of Belgium, shipments of merchandise such as that here involved coming there in bond for export pursuant and subject to said treaty, intended to be transported by the defendant, and to give such directions to the government authorities at Antwerp as were necessary to have such shipments of merchandise placed on board of steamers leaving Antwerp, and connecting with defendant's railroad at Montreal, Canada. But it was his duty to receive and forward such shipments and merchandise as aforesaid only to the extent and in the sense and in the manner according to which shipments of merchandise coming into the kingdom of Belgium in bond for export, pursuant and subject to the terms of the International Treaty might be received by any one at Antwerp, to be thence forwarded under and pursuant and subject to the provisions of said treaty. The defendant did not own the steamers upon which the shipments were embarked, but arranged with the owners of steamers for such space as was required from time to time to carry to Montreal such shipments as were ultimately intended to be carried towards their destination by the defendant's railroad. Such arrangements for ocean carriage of the shipments were contemplated by plaintiff and defendant in their dealings involved in this action. The plaintiff made arrangements from time to time with the defendant at San Francisco, by the terms of which, pursuant and subject to the terms of the treaty and the laws of the kingdom of Belgium, and not otherwise, Debenham, on behalf of the defendant, was to receive and cause to be embarked at Antwerp, pursuant to the arrangements aforesaid, all the shipments of merchandise consigned to defendant for carriage from Antwerp to San Francisco for an agreed rate of freight and many shipments had been made under such arrangements prior to the shipment here in suit. In the regular course of business, and in pursuance of the terms of the arrangements aforesaid, shipments had been from time to time received by said Debenham for plaintiff, forwarded to San Francisco, and delivered to plaintiff, during the five years preceding the shipment here in question.

On May 11, 1901, Oswald Roth of Uster, Switzerland, shipper of the goods mentioned in the complaint, intending to send the same via Antwerp to plaintiff at San Francisco, by way of defendant's road from Montreal, wrote to Debenham as follows: 'Messrs. Wieland Bros. at San Francisco have advised me that in future I must send my consignments by the last boat leaving Antwerp each month. Please let me know at once when the last sailing will take place this month. ' On May 13, 1901, Debenham answered as follows: 'I request you to send me the lot of cheese for account of Wieland Bros of San Francisco to Antwerp Bassins Transit Station, so that it will arrive on the 22d inst.' On May 14, 1901, Roth answered: 'I cannot get the shipment of 35 tubs ready to-morrow, and as Thursday is a holiday I cannot send it in time for the sailing on the 22d. Kindly let me know the date of sailing of the very next steamer following. * * * I counted on it sailing on about May 25th or 30th. ' On May 17, 1901, Debenham replied: 'Please prepare the cheese so that it may arrive here towards the end of the month, for very probably there will be a sailing for Montreal by the end of the month, or on one of the first days of June. I shall have definite news to-morrow or day after, and meanwhile await my advices before shipping. ' On May 20, 1901, Debenham again wrote to Roth: 'Confirming mine of the 17th inst., I take pleasure in advising you that the steamer Sardinian Prince will sail on June 5th, and I request you therefore to forward me the lot of cheese to Antwerp South Transit Station, to arrive not later than June 3d. ' On May 24, 1901, Debenham again wrote to Roth: 'Please let me know by return mail if you will act on my letter of the 20th inst.'

The International Treaty so referred to, binding upon various nations of Europe, including Switzerland, France, Germany, and Belgium, provided that shipments of merchandise intended for export beyond the territory of any of said nations could be transported through the territory of such nation 'in bond'; that is to say, shipments of such merchandise could, pursuant and subject to the provisions of said treaty, be transported into and beyond the territory of such nations without payment of any duty, provided that each of the said shipments of merchandise were contained in receptacles that remained sealed, unbroken, and in the uninterrupted, exclusive, and official custody of the governmental customs authorities of the nations whose territory it was traversing throughout its transportation through such territory, and during its continuance in such territory, and until its final deportation therefrom.

But persons standing in the relationship to such shipments of merchandise such as Debenham occupied to the shipment in controversy had the right to direct such governmental customs authorities when and where such shipments should be delivered for deportation. On May 25, 1901, the shipment of merchandise, consisting of 35 tubs of cheese which is involved in this action, and which was a shipment of merchandise intended to be forwarded pursuant and subject to the provisions of the arrangements aforesaid, and of the International Treaty above referred to, through territory belonging to the republic of Switzerland, the republic of France, the German empire and the kingdom of Belgium in bond for export from the port of Antwerp to San Francisco, there to be delivered to the plaintiff, was placed on board a local railroad train at Uster, Switzerland, consigned to the firm of Niebergall & Goth, forwarders in Basel, Switzerland; the waybill indicating that the shipment was sent in bond in transit to the United States by way of Basel and Antwerp. The car containing the shipment arrived in Basel on May 28th, and the original car containing the shipment was forwarded by Niebergall & Goth on the same day by way of the Alsace-Lorraine Imperial Railroad, and the Belgian State Railroad to Debenham at Anver-Bassins Station. Antwerp; Debenham being, pursuant to the arrangements aforesaid, designated as the consignee of the shipment in the accompanying waybill covering the transit from Basel to Antwerp. When the merchandise arrived at Sterpenich, a station on the Belgian frontier, it was received by the Belgian State Railroad road about 5 p.m. May 29th. From there it was carried by the latter railway to Anver-Bassins Station at Antwerp where it arrived May 30, 1901. The Belgian State Railway was operated by the government of the kingdom of Belgium, and the same officials of the government who operated the railroad were also customs officers of the government, acting as such with respect to the freight which was transported by said railroad, pursuant to the provisions of the treaty aforesaid. Upon the arrival of the car at Anver-Bassins Station, at Antwerp, as aforesaid, the station authorities notified Debenham of its arrival, and delivered to him the waybill which accompanied the shipment.

According to the provisions of the treaty and the laws of the kingdom of Belgium, Debenham then had the option of directing the railroad customs officials to take the goods to the Belgian governmental customs warehouse, called the Entrepot Royal there to remain until such time as he should direct them to be taken to the ship which was to receive them, or of directing said officials to take the car containing the goods to the wharf at which the ship was to receive them, there to remain until such time as he should direct the goods to be placed on board such ship. In either case the goods were required to remain, and would have remained during their entire transit, and their detention, whether in the Entrepot Royal, or on the wharf, in the uninterrupted, exclusive, official custody of the government customs authorities until actually loaded on board the ship. As the ship, at the time of the arrival of the goods at Antwerp, was not ready to receive them, Debenham directed the railroad customs officials to take the goods to the Entrepot Royal, there to be held in the custody of the Belgian customs authorities until he notified them that the vessel which was to receive the shipment was ready to receive and embark the same for export from Belgium, whereupon it would have been the duty of the Belgian customs authorities to transport the shipment from the Entrepot Royal to the wharf and there deliver it physically to the ship which was to receive it, and to make...