Central of Georgia Ry. Co. v. Council Bros.
| Citation | 136 S.E. 418,163 Ga. 494 |
| Decision Date | 13 January 1927 |
| Docket Number | 5456. |
| Parties | CENTRAL OF GEORGIA RY. CO. v. COUNCIL BROS. |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
Where by the terms of its bill of lading, the initial carrier agreed to transport a car of peaches from a point in this state to a point in another state, the transportation to be made over its own lines and those of connecting carriers, the shipper, if the owner, had the right, as an incident to the contract of carriage, before the shipment reached the point of destination named in the bill of lading, to direct the terminal connecting carrier to divert the shipment to another place upon its lines; and if such terminal carrier failed to divert the shipment as directed by the shipper, in consequence of which the peaches were damaged, the initial carrier would be liable to the shipper for such damages although no notice of the requested diversion was given to the initial carrier.
Under the Carmack Amendment to the Interstate Commerce Act, as amended by the Cummins Act (U. S. Comp. St. § 8604a), any common carrier subject to the provisions of said act receiving goods for transportation from a point in this state to a point in another state, is required to issue a receipt or bill of lading therefor, and is liable to the lawful holder thereof for any damage to such property caused by it or by any common carrier to which such property may be delivered or over whose line or lines it may pass within the United States, when transported on a through bill of lading and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such initial carrier from such liability.
A rule of the initial carrier, which stipulated that it would not be liable for a failure to divert any shipment, where the shipment had passed beyond its own lines of railway, unless such failure was caused by the negligence of its own employees, was void and illegal under the said Carmack Amendment (U. S. Comp. St. § 8604a), notwithstanding its approval by the Interstate Commerce Commission.
Certified Question from Court of Appeals.
Action by Council Bros. against the Central of Georgia Railway Company. Judgment for plaintiffs, and defendant brings error. On certified question from Court of Appeals. Question answered.
H. A. Wilkinson, of Dawson, for plaintiff in error.
Jas. A. & John A. Fort, of Americus, for defendants in error.
Watkins & Asbill, of Atlanta, representing parties at interest not parties to the record.
The Central of Georgia Railway Company and its connecting carriers transported, under through bill of lading issued by said company, a carload of peaches from Americus, Ga., to Buffalo, N.Y. Before the arrival of this car at Buffalo, the shipper ordered an authorized agent of the Pennsylvania Railroad, one of the connecting carriers and the terminal carrier of the shipment, to divert this car to New York City. No notice of the requested diversion was given to the initial carrier. The Pennsylvania Railroad Company failed to divert the shipment, and this failure caused damage to the shipment. One of the terms of the bill of lading provided that:
"Any alteration, or addition, or erasure in this bill of lading, which shall be made without the special notation thereon of the agent of the carrier issuing this bill of lading shall be without effect, and this bill of lading shall be enforceable according to its terms."
There was no alteration of, addition to, or erasure in this bill of lading. At the time the shipment was received by the initial carrier, there was filed with and approved by the Interstate Commerce Commission a regulation by the initial carrier which stipulated that it would not be liable for failure to divert any shipment, where the shipment had passed beyond its own lines of railway, unless the failure to divert was caused by the negligence of its own employees. The only bill of lading issued for the transportation of this property was the original one issued by the initial carrier. The failure to divert the shipment of this car was not caused by the negligence of any employee of that carrier. Under the Carmack-Cummins Amendment of the Interstate Commerce Act, and in view of the facts stated, was the initial carrier liable for the damage to the shipment occasioned by the failure of the terminal carrier to divert the shipment to New York City?
The applicable portion of the Carmack-Cummins Amendment to the Interstate Commerce Act is as follows:
"Any common carrier, railroad, or transportation company subject to the provisions of this act receiving property for transportation from a point in one state *** to a point in another state, *** shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass within the United States *** when transported on a through bill of lading, and no contract, receipt, rule, regulation, or other limitation of any character whatsoever, shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed." U.S. Comp. Stat. 1923 Supp. § 8604a.
By the terms of its bill of lading the initial carrier received this car of peaches at Americus in this state, and agreed to transport it to Buffalo in the state of New York. The car of peaches was so transported; but before its arrival at Buffalo, the shipper, who, we assume, was the owner, directed an authorized agent of the terminal carrier, which was a connecting carrier of the initial carrier, to divert the shipment to New York City. No notice of the requested diversion was given to the initial carrier. The connecting terminal carrier failed to divert the shipment, and this failure caused the peaches to be damaged. It is insisted by counsel for the initial carrier that its liability cannot be extended beyond the contract evidenced by the bill of lading, and that the initial carrier thereunder would only be liable for the carriage of the goods from the point of origin to the point of destination safely and in good order, and that the initial carrier would not be liable for any damages sustained by the shipper by reason of the failure of its connecting carrier to divert the goods from the point of destination named in the bill of lading to another place, when such diversion was requested of such carrier by the shipper. It is undoubtedly true that the initial carrier was only bound by the terms expressly or impliedly embraced in its bill of lading, and would not be required to perform any duties not imposed on it by such terms. If the right of the shipper to divert the shipment from the point of destination named in the bill of lading to New York City did not exist under this bill of lading, then the inital carrier would not be liable for damage sustained by failure of the connecting and terminal carrier to make the diversion. Did the shipper under this contract of carriage have the right to divert the shipment? From the question propounded by the Court of Appeals, it does not appear that this right was expressly provided for in the bill of lading. Was such right an incident to the contract of shipment? In other words, can a shipper, who is the owner of goods shipped, stop the shipment short of the point of destination named in the bill of lading, or divert the shipment from such point to another place? The carrier is the bailee of the shipper to transport his goods. Is the shipper, after making a contract with the carrier to transport a shipment from one point to another, obliged to permit the carrier to take them to such point? We think not. The shipper, if the owner, can stop the goods short of the place of destination named in the contract of shipment. He can likewise divert the shipment while it is moving under the bill of lading, and before it reaches such point of destination, to another place. The contract is to deliver the goods at the place named by the shipper, unless the shipper directs them to be delivered at a different place. In L. & N.W. Ry. Co. v. Bartlett, 7 H. & N. 400, 158 English Reports (reprint), 529, Baron Bramwell said:
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