Cincinnati, N. O. & T. P. Ry. Co. v. N. K. Fairbanks & Co.

• Court: U.S. Court of Appeals — Sixth Circuit
• Citation: Cincinnati, N. O. & T. P. Ry. Co. v. N. K. Fairbanks & Co., 90 F. 467 (6th Cir. 1898)
• Decision Date: 28 November 1898
• Docket Number: 601.
• Parties: Cincinnati, N.O. & T.P. RY. CO. v. N. K. FAIRBANKS & CO.

90 F. 467

Cincinnati, N.O. & T.P. RY. CO. v. N. K. FAIRBANKS & CO.

No. 601.

United States Court of Appeals, Sixth Circuit.

November 28, 1898

Harmon Colston, Goldsmith & Hoadly, for plaintiff in error.

Robert Ramsey, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge.

LURTON Circuit Judge.

This is an action against a railway company to recover the value of a shipment of cotton-seed oil lost while in course of transportation over the railway of the plaintiff in error.

There was a direction to find for the defendant in error. It is now said that this instruction was erroneous, and that plaintiff in error was not liable as an insurer against all accident and loss due to human agency, but only for negligence, and that there was no evidence of negligence. It may be conceded that, if the plaintiff in error is not liable as a common carrier, but only for negligence, the judgment must be reversed.

1. It is said that these goods were shipped under a through bill of lading issued by another carrier, by which it undertook to safely deliver the goods at their destination, and that plaintiff in error was an intermediate carrier, carrying the goods only as agent for the initial carrier, and having no contractual relations with the owner, and liable only, if at all, for a loss through negligence. This contention is not sustained by the facts. This oil was contained in four cars called 'tank cars'; cars peculiarly adapted to the shipment of oil in bulk. It was received at Atlanta, Ga., the place of shipment, by the East Tennessee, Virginia & Georgia Railway Company, consigned to Chicago, Ill. The initial carrier owned and operated a line of railroad, extending in the direction of Chicago, only between Atlanta and Chattanooga, Tenn. At the latter point the line of railway operated by plaintiff in error began, and continued the route in the direction of Chicago. The first carrier issued a through bill of lading for each of said tank cars. Each bill was entitled:

'Shippers are requested to read this contract. 'East Tennessee, Virginia and Georgia Railway Company and Connections.

'Through Bill of Lading.

'The right to compress cotton reserved in this bill of lading. This receipt to be presented without alteration or erasure.'

The following are those parts of the printed bill which have most bearing upon its construction in the matter now under consideration:

'Atlanta, Ga., 5/4, 1889.

'Received by the East Tennessee, Virginia and Georgia Railway Company, of Southern Cotton-Oil Company, under the contract hereinafter contained, the property mentioned below, marked and numbered as per margin, in apparent good order and condition; contents and value unknown.

'Consigned to N. K. Fairbanks & Co., at Chicago, Ill. To be transported by the East Tennessee, Virginia and Georgia Railway to . . .; thence by connecting rail or other carrier, via . . ., until they reach the station or wharf nearest their ultimate destination. If their ultimate destination be beyond the point for which rates are named, they may, by the connecting carrier nearest such ultimate destination, be delivered to any other carrier, to be transported to such ultimate point; and the carrier so selected shall be regarded exclusively as the agent of the owner or consignee. Each carrier shall be bound (subject to limitations and exceptions contained in this contract) to deliver said goods in the same order and condition as that in which it received them; and the ultimate carrier to deliver them at its station or wharf to his consignee or his assigns, if called for by him or them, as in this contract provided,-- he or they paying freight and charges thereon, and average, if any. It is mutually agreed, in consideration of the rates herein guarantied, that the liability of each carrier, as to goods destined beyond its own route, shall be terminated by proper delivery of them to the next succeeding carrier. * * * The several carriers shall have a lien upon the goods specified in this bill of lading for all arrearages of freight and charges due by the same owners or consignees on other goods. In case of loss, detriment, or damage to the goods, or delay in the transportation thereof, imposing any liability hereunder, the carrier in whose actual custody they were at the time of such loss, damage, detriment or delay shall alone be responsible therefor. The receipt of any carrier for the goods shall be prima facie evidence of the condition in which he received them, in a suit against any other carrier. * * * This bill of lading is signed for the different carriers who may be engaged in the transportation, severally, not jointly; and each of them is to be bound by, and have the benefit of, all the provisions thereof, as if signed by it, the shipper, owner, and consignee. The acceptance of this bill of lading is an agreement on the part of the shipper, owner, and consignee of the goods, to be bound by all of its stipulations, exceptions, and conditions, as fully as if they were all signed by such shipper, owner, and consignee. This contract is executed and accomplished, and the liability of the company as common carrier thereunder terminates, on the arrival of the goods or property at the wharf, station, or depot to which this bill of lading contracts to deliver and the carrier will be responsible thereafter only as warehouseman. This bill of lading shall have the effect of a special contract not liable to be modified by a receipt from or of an intermediate carrier.'

All of these bills are signed by 'M. Taylor, Agent,' and conclude with a blank form, filled in in part, as follows:

------------------------------------------------------------------------------- Cents Per One Hundred Pounds. -------------------------------------------------- If If If If If If If In witness whereof Class Class Class Class Class Class Special bills of lading, all of 1 2 3 4 5 6 this tenor and date. have been signed, one whereof being accomplished, the ---- ---- ---- ---- ---- ---- ---- others to stand void. Rates from Atlanta, 35 Ga.; to Chicago, Ill. Names by .......... Agent. ---- ---- ---- ---- ---- ---- ---- Weights, rates, and classification subject to correction. Subject to differences in classification of connecting carriers. Charges advanced $............................ ------------------------------------------------------------------------------- -------------------------------------------------------------------------- Marks and Numbers. No. Pk'gs. Description of Articles. Weight. -------------------------------------------------------------------------- A. C. O. Co. 7027. One tank C. S.

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