John Brittan, Appellant v. William Barnaby, Claimant of the Ship Alboni

• Decision Date: 01 December 1858
• Parties: JOHN W. BRITTAN, APPELLANT, v. WILLIAM A. BARNABY, CLAIMANT OF THE SHIP ALBONI
• Court: U.S. Supreme Court

62 U.S. 527

21 How. 527

16 L.Ed. 177

JOHN W. BRITTAN, APPELLANT, v. WILLIAM A. BARNABY, CLAIMANT OF THE SHIP ALBONI.

December Term, 1858

[Syllabus from pages 527-529 intentionally omitted] THIS was an appeal from the Circuit Court of the United States for the districts of California, sitting in admiralty.

It was a libel filed by Brittan, under the circumstances stated in the opinion of the court. The District Court dismissed the libel, and the Circuit Court affirmed the decree.

It was argued by Mr. Sherwood for the appellant, and Mr. Broom for the appellee.

The points only made by the counsel can be noticed. On the part of the appellant, they were the following:

1. The principle of mercantile law, that the consignee of the goods has a right to insist that they shall be discharged from the vessel, and that he may examine them before he makes himself liable for the freight, is elementary.

The carrier is not at liberty to insist that the goods shall not be be landed before he can call upon the merchant for freight. (Abbott on Shipping, 5th Am. ed., pp. 375, 376, 377; 3d Kent's Com., p. 214, and the notes and authorities there cited; Flanders on Shipping, p. 281, art. 281; Certain Logs of Mahogany, 2d Summer, 600; The Salmon Falls Manufacturing Co. v. The bark Tangier; Op. Justice Curtis; Monthly Law Reporter for May, 1858, p. 6.) This principle is also fully established by the civil law. (1 Valin, Liber 6, tit. 3, p. 665.)

2. In this action, all the goods set forth in the bill of lading were not discharged in one day. The reason does not appear. A part having been discharged on the 24th day of October, the libellant offered to pay the freight on that part, and thus placed it in the power of the carrier to have relieved himself from the responsibility of sending the goods to the warehouse.

The third point related to the usage set up by the appellee.

The fourth and fifth related to the stamps upon the bill of lading; and upon these points were cited 1 Smith's Leading Cases, 320, and 1 Parsons on Contracts, 703.

The points made by the counsel for the appellee were the following:

1. By the general mercantile law, the obligation of the carrier does not extend beyond carrying from port to port; for this he receives his freight money. All necessary and proper charges that accrue on the goods after arrival, as wharfage, cartage, &c., must be paid by the shipper. If he insist upon a delivery of all the goods at once, before payment, such charges as this renders necessary must be borne by him. According to the course of the California trade, as it appears in evidence, with respect to the lading and discharging of ships, the state of the wharves, &c., storage is proper and necessary where all the goods embraced in the bill of lading are not got out in one day; for the master is not at liberty to leave goods exposed on a wharf, but it is his duty to see that they are safely kept. (Abbott on Shipping, 7th Am. ed., 494, 495; ib., 491, 492; Flanders on Shipping, 273, 275, 276; Story on Bailments, 566; 3 Camp. R., 360; 4 T. R., 260.)

2. There is no obligation on the master to deliver part of the goods in a single bill of lading upon payment of part of the freight. (Abbott on Shipping, 493, marginal paging 377.)

3. The contract of the parties here is express, that the consignee shall receive the goods at 'the ship's tackles,' and that freight must be paid 'prior to delivery, if required.' The stamp is a part of the contract. (1 Duer on Insurance, 75, 141; 4 Mass., 245; 14 Mass., 322; 10 Pickering, 228; ib., 298; 4 Metcalf, 230; 8 Metcalf, 226; 16 Vermont, 26.) These cases are cited. (Chitty on Bills, 11th Am. ed., 141, note.)

4. A good and valid usage was proved; and that usage controls the general rule of mercantile law, if that rule be different from what is contended for. (1 Duer on Insurance, 255, 269, 271, 264, sec. 58; 14 Wendell, 26; 17 Wendell, 207; 9 Wheaton, 581, 230, 231; 1 Duer, 186; ib., 267.)

5. Even if the usage were not perfect and universal, but partial, yet as it was the usage of D. L. Ross & Co., and the libellants had notice of it by previous dealings with that house, and took a bill of lading with notice stamped on its face, it is binding on them. (1 Duer on Insurance, 254; ib., 263, sec. 57 286, note, and cases cited; 4 Cow. and Hill's ed. of Phillips on on Ev., 511.)

Mr. Justice WAYNE delivered the opinion of the court.

This cause involves an important commercial principle, of daily recurrence in practice, which does not appear to be well understood and settled in San Francisco. Our decision will correct the misapprehension there in regard to the delivery of merchandise by ship-owners, and the payment of freight for its transportation.

The libellant was the owner and consignee of goods of a value exceeding four thousand dollars, which were shipped in good order and condition at New York, on board of the ship Alboni, to be carried and delivered in San Francisco, in the same order, at a rate of freight expressed in the bill of lading. It amounted to two hundred and forty-seven dollars and twelve cents, including eleven dollars and seventy-seven cents for primage. The bill of lading, upon its face, is in the ordinary form; but there was a stamp upon the back of it, in these words: 'That the goods were to be delivered at the ship's tackles when ready for delivery—not accountable for loss or damage by fire or collision; freight payable prior to delivery, if required; contents unknown.' The proctors in the cause agreed that those words were stamped on the original bill of lading.

The ship arrived at San Francisco. Notice of it was given to the libellant by the consignee of the ship; and he also required payment of the freight of the goods as they should be landed from the ship on the wharf, and that if it was not paid, and the goods received by four o'clock of the day, such of them as had been landed would be placed in a warehouse for safe keeping, at the expense of the libellant. The notice and the requirement are taken from the second article of the respondent's answer to the libel. He adds, that the libellant had refused to pay the freight according to the terms of the bill of lading.

The testimony discloses what the respondent considered to be its terms, and the refusal of the libellant to acquiesce in his interpretation.

The goods were landed from the ship in parcels, on different days, from the 24th to the 27th of October, inclusive. The clerk of the libellant attended on each day to receive them. In conformity to the notice which had been given, he offered to pay the freight of such of the merchandise as had been landed. The consignee of the ship refused to receive it, or to deliver such goods, claiming that he had a right to demand the freight upon the whole shipment, when he was only ready to deliver a part of it. In the assertion of this right (certainly not in conformity with the notice he had given to the libellant) the respondent from day to day warehoused the goods.

The libellant did all he was bound to do under the notice which had been given to him. He could not have done more. The respondent's refusal to deliver the parcels as they were landed cannot be justified, under the notice he had given, by any delay there may have been in the delivery, either from the necessity of weighing or measuring them, or from the claim made by him to have the freight paid upon the whole shipment before he would deliver a part of it. He had taken his course, and the libellant acquiesced in it, by offering to pay the freight on each parcel as it was put on the wharf, though not bound to do so by the commercial law. The respondent's refusal has no justification, either in law, nor can it be vindicated by any evidence in the cause.

We do not mean to say that the libellant had a right to take the parcels on the days they were landed, without the payment of a pro rata freight; but where a ship-master has a larger shipment under one bill of lading than he can land in the business hours of a day, as he has the control of unloading the cargo, he must take care not to do it in such quantities that he may not be able to have the pro rata freight ascertained in the only way in which it can be done. Until it shall be done, he is not in readiness to deliver such part, or to demand the freight which may be due upon it. Goods so landed will be under his care and responsibility, without additional expense to the consignee of them, until they shall be ready for delivery.

Ordinarily, no difficulty arises between the ship's owner and the consignee of the goods; their interest, convenience, and responsibilities, usually suggest to them some arrangement for the freight beforehand, by which goods landed from day to day may be taken without delay by the consignee of them. In this instance, however, no opportunity was given to the libellant to make such an arrangement, the consignee of the ship having absolutely demanded the whole freight of the shipment as the condition for the delivery of any part of it.

On the fourth day, when all of the libellant's shipment had been landed, and before they were sent to a warehouse, he demanded from the consignee of the ship a delivery order for all the merchandise specified in the bill of lading, tendering at the same time, in gold, the whole freight due. The delivery order was refused, the answer being that the goods were subject, in addition to the freight, to a charge for storage and cartage. The last was also warehoused by the respondent, as those of the three previous landings had been.

The foregoing is a sufficient statement of the facts and evidence in this case for the decision of it. It will not be necessary to notice again the...