Crenshawe v. Pearce

• Decision Date: 12 January 1889
• Citation: 37 F. 432
• Parties: CRENSHAWE v. PEARCE.
• Court: U.S. District Court — Southern District of New York

37 F. 432

CRENSHAWE v. PEARCE.

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

January 12, 1889

Evarts Choate & Beaman, for libelants.

Wilcox Adams & Macklin, for respondent.

BROWN J.

The libelants, in September, 1887, received from Underhill & Co. in this city, three bills of lading, reciting the shipment of 848 bales of cotton on board the steam-ship Arizona, for Liverpool, dated August 31st, September 1st, and September 2d. She sailed on Tuesday, September 6th. Only 289 bales went by the Arizona. The remaining 559 bales were carried by the Wisconsin, of the same line, which left a week later, and arrived in Liverpool about 10 days after the Arizona. During this interval there was a fall of three-eighths of a penny per pound in the market price of cotton, to recover which this libel was filed.

The evidence shows that on the 24th and 26th of August preceding written contracts were made between the libelants and the representatives of Underhill & Co., whereby transportation was engaged for 'about 800 bales of cotton on board a steam-ship of the Guion line, expected sailing the 6th and/or 13th September, agent's option, subject to the terms and conditions of the form of the bill of lading approved by the New York Produce Exchange,' and that the bales in question were sent by the libelants to the Guion line under these contracts. The 'Guion Line' is a mere trade-name. The vessels that form the 'line,' and run on stated days, belong to different owners. They are run independently; the accounts are distinct; the owners of one vessel are not interested in, or liable for, the business of the vessels of the other owners. The respondent was sole owner of the Arizona, and had no interests in the other vessels of the 'line.' The Arizona was advertised to sail on September 6th; the Wisconsin, September 13th. A permit or order was issued, as customary, by Underhill & Co., for the receipt of the cotton by the line. The permit was delivered to the libelants about the 25th of August, and specified the steam-ship 'Arizona and or Wisconsin, about 800 bales cotton; uncompressed, to Empire Stores; to be delivered on or after August 30th. ' Under this permit the cotton was all delivered by the libelants either to the Empire press, or at the Guion pier. Two hundred and nineteen bales were carried by that vessel. The rest of the cotton was sent to the Guion pier.

When the permit provides for an option in transportation, by one or more steamers, as in this case, the shipping receipt given at the dock or press, for each lot delivered under such a permit, is required to be in the same form and to specify the names of both steamers; and the bills of lading, which in the usual course of business are obtained at Underhill & Co.'s office in exchange for the shipping receipts, are also issued, as of course, in the same form. In the present case seven different lots were delivered at the dock or press, under the permit; but all the shipping receipts that the libelants received therefor mentioned the ship Arizona only. The evidence shows that this was done without the knowledge or authority of Mr. Underhill, the only person authorized to determine by which vessel the goods should go. It was the result of mere mistake, or misinformation, or misunderstanding, in the absence of instructions from Underhill & Co.; and it was apparently, in part at least, brought about by the libelants themselves. A great number of the libelants' 'slips,' sent to the line by the car-men or lighter-men along with the goods, were produced in evidence, and all except one state that the goods were to go by the Arizona. The libelants had no right to send with the goods slips thus worded. They should have read 'Arizona and/or Wisconsin.' Although the subagents at the dock or at the press had also no right to act upon the libelants' slips alone, such slips were calculated to mislead, and they no doubt conduced to the mistake in the shipping receipts, if they did not alone cause it.

The option reserved to Underhill & Co. to send goods by the one steamer or the other, was an option beneficial to both parties; to the ship, because it enabled her to take higher priced freights for perishable goods that might be brought forward for transportation on the last day; or, if these were wanting, to fill up with the lower priced cotton. It was beneficial to the libelant, because the ship could afford to take the cotton at a lower freight, in view of the option reserved as to the time of forwarding.

The bills of lading are not, as the libelants contend, the only contracts between the parties. Even if they had been regularly issued, they would only have been in execution of the previous contracts of affreightment, which provided that bills of lading should be given. The bills of lading stand in the same relation to the original contracts of affreightment that bills of lading hold to the charter-parties under which they have been given. In the latter class of cases it has been long settled, not only that the bills of lading do not supersede the provisions of the charter-party in so far as they differ from it, but that they are controlled by the charter-party, in the absence of any proof of authority and intention to make a new contract. 1 Pars.Adm. 286; The Chadwicke, 29 F. 524, and cases there cited; Ardan v Theband, 35 F. 620. By those contracts Mr. Underhill had the right to send the cotton by either the Arizona or the Wisconsin, or in part by both, as was done. There was no intent by either party to make any new contract. There was doubtless an option...