Cunard S.S. Co. v. Kelley

• Decision Date: 18 April 1902
• Docket Number: 419.
• Citation: 115 F. 678
• Parties: CUNARD S.S. CO., Limited, v. KELLEY et al.
• Court: U.S. Court of Appeals — First Circuit

115 F. 678

CUNARD S.S. CO., Limited, v. KELLEY et al.

No. 419.

United States Court of Appeals, First Circuit.

April 18, 1902

[Copyrighted Material Omitted]

George Putnam (James L. Putnam, on the brief), for plaintiff in error.

Sherman L. Whipple (Whipple, Sears & Ogden, on the brief), for defendants in error.

Before COLT, Circuit Judge, and ALDRICH and BROWN, District Judges.

BROWN District Judge.

This writ of error is to review the rulings of the circuit court in an action at law for failure to deliver at Boston 53 bales of goatskins alleged to have been delivered to the Cunard Steamship Company, at Naples, Italy, for transportation to Boston, Mass. The chief defense of the steamship company was that the goods were not delivered to it for carriage.

The rulings of the circuit court relating to the question of delivery present the principal questions before us.

It is agreed that:

'The Cunard Company had no dock at Naples, and goods shipped by its steamships had to be put on board in lighters. The Punto Franco is a wharf and warehouse owned by a limited company called the 'Societa Meridionale dei Magazzine Generale,' a 'Societa Anonima' or limited company, in which goods intended for shipment are deposited by the owners or shippers until they should be put on board.

'It was a frequent practice of steamship agents in Naples to give bills of lading to shippers of goods deposited in the Punto Franco to await the arrival of steamships.'

Garsin, the agent of the plaintiffs, brought from Petriccione Bros. in Naples two lots of goatskins,-- the first of 38 bales, and the second of 15 bales. By agreement, the Petriccione were to make delivery of the bales on board steamer, and the price paid was free on board. Both lots of goods were entered at the Punto Franco in the name of Ricciardi, the Petriccione's shipping agent. The Petriccione were to bear the expense of lightering the goods from the Punto Franco to the steamer. Goods entered in the Punto Franco are registered in the name of the depositor or his shipping agent, are given a number on the books, and can be taken from the Punto Franco only by the direction of the person in whose name they stand. While the goods were thus on deposit in the Punto Franco, and standing in Ricciardi's name, two bills of lading were issued to Garsin. The bill for the lot of 38 bales contained the following statement:

'Shipped in good order and condition by A. Garsin & Co., in and upon the good steamship called the Aleppo, whereof-- -is master for the present voyage, * * * and now lying in this port and bound for the port of Liverpool, for Boston, Mass.'

This bill of lading was signed, 'For the master, . Nicola Ferolla, Ettore Rondino. ' The bill for 15 bales acknowledged receipt of the goods upon the Tarifa, and bore a like signature.

It was agreed that Ferolla was the agent of the Cunard Company, 'with authority to sign for the master bills of lading for the transportation of merchandise delivered on board the steamships of that company at Naples,' and 'Rondino was Ferolla's clerk, with power to exercise his authority.'

At the time of signing and delivery of the bills of lading, no vessel was in port.

The stipulated facts did not show that Rondino was authorized to receive goods on behalf of the company at the Punto Franco, or to give bills of lading for goods deposited there.

The circuit court instructed the jury that the bills of lading were the bills of lading of the Cunard Company, irrespective of any direct evidence in the case as to the authority of Rondino, saying:

'The Cunard Company received the freight called for by them, and assumed to deliver the goods they described, and therefore it accepted the papers as its bills of lading.'

In these instructions we find substantial error.

The Cunard Company contended that, after the delivery of the bills of lading to Garsin by Rondino, and while the goods were in the Punto Franco, and before they had come into the possession of any authorized agent of the company, a fraudulent substitution of goods was made; that bales of sheepskins were substituted for the goatskins described in the bills of lading; and that, though the Cunard Company did receive aboard the steamship Tarifa 53 bales, which, by their marks, purported to be the goods described in the bills of lading, they were not in fact the same goods.

There certainly was evidence to support this contention, and to entitle the Cunard Company to a finding by the jury thereon.

If, in receiving goods aboard the Tarifa, the company's agent was deceived or misled by fraudulent marks, and took aboard, carried, and delivered other goods than those described by the bills of lading, such acts cannot amount to an acceptance or ratification of bills of lading previously unauthorized.

If the act which is relied upon to establish a ratification was itself induced by deceit or mistake, it cannot amount to ratification.

Unless the fact of substitution of goods was known to the company, it did not ratify. Bennecke v. Insurance Co., 105 U.S. 359, 360, 26 L.Ed. 990; Cook v. Tullis, 18 Wall. 332, 21 L.Ed. 933.

This case was sent to the jury upon the theory that the question of actual authority was immaterial. Let us consider the case upon this view.

Unless authorized, Rondino's acts were not an acceptance of the goods at the Punto Franco. While in the Punto Franco, and in the possession of the Punto Franco for the owners, or for Ricciardi, or perhaps for Rondino, the goods were at the risk of one or more of these persons. The Cunard Company, on this view, was under no obligation to care for the goods; and for all that occurred during the period when the goods were at the Punto Franco the Cunard Company was without liability, either for negligence or for breach of contract.

During this time a substitution of goods was made. This was a fraud practiced upon the persons then in possession. If the Cunard Company subsequently received the substituted goods as and for the goods originally deposited, in ignorance of the fact that through the misfortune or fault of the shipper or his agent they had been changed, are we to say that this innocent mistake makes it responsible, on the ground that it voluntarily assumed responsibility for a loss which occurred entirely through the fault of others? Its acceptance of goods aboard ship was at best a ratification of the written contract of carriage, but cannot be held to amount to a ratification of a previous receipt of goods. The contract of carriage, if ratified, is still conditional upon the actual delivery of the goods.

In The Idaho, 93 U.S. 582, 23 L.Ed. 978, it was said:

'A delivery of goods to a ship corresponding in substance with a bill of lading given previously, if intended and received to meet the bill of lading, makes the bill operative from the time of such delivery.'

The receipt of goods not corresponding in substance to the bill of lading could not make the bill of lading good from the date it was delivered.

There would be absolutely no consideration to support a promise by the Cunard Company to pay for goods which it did not in fact receive, and which were lost at a time when the company was not responsible for their custody.

The burden was on the plaintiffs to prove delivery of the goods to the Cunard Company.

We are of the opinion that neither party is entitled to require that this court, upon the evidence before it, should decide whether the goatskins in question were actually received upon the Tarifa. This was a question of fact for the jury. This question was taken from the jury and therefore the defendants in error must support the verdict by showing that the goods were delivered to, and accepted by, the Cunard Company at the Punto Franco.

The circumstantial evidence as to Rondino's actual authority to receive goods at the Punto Franco, and to give bills of lading for goods there deposited, was, at least, insufficient to justify a direction that the bills were the bills of the Cunard Company.

The bills of lading did not prove themselves, and the burden rested upon the plaintiffs to prove execution by a duly authorized agent.

We are of the opinion that there was evidence from the plaintiffs which entitled them to go to the jury upon the questions of Rondino's authority, and the due execution of the bills of lading, and that the question of authority was one for the jury.

But, even if the bills of lading were issued by a duly authorized agent of the Cunard Company, this would still be insufficient to justify the direction of a verdict for the plaintiffs. A bill of lading is both a receipt and a contract of carriage. As a receipt, it is open to explanation.

The plaintiffs had the burden of proving the allegation that they had delivered these goods to the defendant for carriage. They offered certain bills of lading, which, if duly executed, were evidence of what appeared on the face of the bills, to wit, an acknowledgement of the receipt of goods on board the ship by the master. The prima facie case created by these bills was overthrown by evidence offered by the plaintiffs themselves, to the effect that the bills of lading were executed and delivered before the goods were received aboard ship, or consigned to the care of a master, and while no vessel was in port. The burden of proof still remained upon the plaintiffs to show a delivery to the company. Upon the whole case, the burden was not upon the defendant to show that it had not authorized the receipt of goods in the Punto Franco, but upon the plaintiffs to prove that it had.

The court further instructed the jury, as follows:

'While the goods were in the Punto Franco, after the bills of lading were given, they were, by the...