Mexican Light & Power Co. v. Texas-Mexican Ry. Co.

• Decision Date: 31 October 1945
• Docket Number: No. 11544.,11544.
• Citation: 190 S.W.2d 838
• Parties: MEXICAN LIGHT & POWER CO., Limited, v. TEXAS-MEXICAN RY. CO.
• Court: Texas Court of Appeals

190 S.W.2d 838

MEXICAN LIGHT & POWER CO., Limited, v. TEXAS-MEXICAN RY. CO.

No. 11544.

Court of Civil Appeals of Texas. San Antonio.

October 31, 1945.

Rehearing Denied December 12, 1945.

Appeal from District Court, 117th District, Nueces County; Tillman Smith, Judge.

Action by the Mexican Light & Power Company, Limited, against the Texas-Mexican Railway Company to recover for damages suffered by plaintiff as result of derailment of freight cars upon which plaintiff's property was being transported within the Republic of Mexico. From a judgment for defendant, the plaintiff appeals.

Reversed and rendered.

Johns & McCampbell, of Corpus Christi, and Fulbright, Crooker, Freeman & Bates and Chas. W. Bell, all of Houston, for appellant.

J. D. Dodson and Charles W. Duke, both of San Antonio, Marcellus Eckhardt, of Corpus Christi, and Elmore H. Borchers, of Laredo, for appellee.

NORVELL, Justice.

This is an appeal from a judgment denying a shipper a recovery for damages suffered by it as a result of the derailment of certain freight cars upon which its property was being transported within the Republic of Mexico, over the lines of National Railways of Mexico. The asserted liability of appellee, The Texas-Mexican Railway Company, is predicated upon the provisions of 49 U.S.C.A. § 20(11),¹ in that appellant, Mexican Light & Power Company, Ltd., contends that appellee issued to it a through bill of lading covering the shipment from a point in the United States (Laredo, Texas) to a point in an adjacent foreign country (El Oro, Mexico).

The controlling question in this litigation is stated by appellee, substantially, as follows:

Did the instrument sued upon (which was issued by The Texas-Mexican Railway Company) disclose an enforcible through bill of lading upon which to hold appellee liable for damages arising from the negligence occurring within the Republic of Mexico while the property was being transported by the National Railways of Mexico?

This case was tried below upon the stipulations of the parties. From the facts so stipulated no conflicting fact inferences can be drawn. Questions of law only are presented.

On September 20, 1934, Westinghouse Electric and Manufacturing Company delivered three specially built electric transformers and parts to the Pennsylvania Railroad Company for shipment to Laredo, Texas. This equipment had been purchased by appellant and in the bill of lading issued by the Pennsylvania Railroad Company, said property was consigned to the Mexican Light & Power Company in care of Fausto Trevino, Customs Agent at Laredo, Texas. These transformers, etc., were loaded upon two Pennsylvania flat cars and transported over the lines of the Pennsylvania Railroad Company, Missouri-Kansas and Texas Ry. Co., Southern Pacific Lines, and The Texas-Mexican Railway Company to the freight yards of the latter railway company at Laredo, Texas.

While the cars loaded with appellant's property were waiting in the freight yards of the appellee at Laredo, said railway company issued to Fausto Trevino, appellant's agent, the document sued upon in this action. This instrument is dated September 29, 1934, and by it The Texas-Mexican Railway Company acknowledged receipt of the electrical equipment here involved, and agreed "to carry (the property received) to its usual place of delivery at said destination, if on its own road or its own water line, otherwise to deliver to another carrier on the route to said destination."

The shipment was consigned to Mexican Light & Power Company, Ltd., destination, El Oro, State of Mexico, route, via Acambaro.

The disputed instrument was made out upon a form prepared for a domestic straight bill of lading. The receipt clause states that the property to be shipped is "Received subject to the classifications and tariffs in effect on the date of the issue of this Bill of Lading." No rates or charges for carriage are set forth in the instrument which does, however, contain the following direction, set forth over the name of the consignor, Fausto Trevino, viz.: "The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges."

After the instrument above described had been issued and delivered, the appellee moved the cars laden with appellant's property from its yards in Laredo to the middle of the International Bridge over the Rio Grande. Here the cars were picked up by the Mexican carrier and transported to the interior of Mexico, where a derailment occurred with resultant damage to appellant's property. This damage occurred on October, 10, 1934.

Appellant made claim for damages against the Mexican carrier, which was rejected. Suits were then filed against the Pennsylvania Railroad Company and The Texas-Mexican Railway Company, upon the apparently alternative theories, (1) that the Pennsylvania was an initial carrier, under the Sharon bill of lading, and (2) that The Texas-Mexican Railway Company was the initial carrier under the Laredo bill of lading.

The action against the Pennsylvania was tried first and resulted in a judgment in favor of the carrier. Mexican Light & Power Co. v. Pennsylvania R. Co., D.C.E. D.Pa., 33 F.Supp. 483, 485.

The federal district court held that the Sharon bill of lading issued by the Pennsylvania was not a through bill of lading to El Oro, Mexico, although it contained the notation, "For export to: El Oro, Estado de Mexico, via Acambaro, via Laredo." The court further held that under the Carmack Amendment, as amended by the first Cummings Amendment, a carrier receiving property at a point within the United States for shipment to a point within an adjacent foreign country was not required by law to issue a "through bill of lading." (For a statement of the history of the Carmack Amendment and various amendments thereto, see Ann. 49 U.S.C.A. § 20(11), p. 89; also Alwine v. Pennsylvania R. Co., 141 Pa. 558, 15 A.2d 507.)

Under the above holding, it is apparent that The Texas-Mexican Ry. Co. was under no legal obligation to issue a through bill to El Oro, Mexico. It appears from the stipulations that the proportionate part of the export freight rates charged and paid by appellant under the Sharon bill of lading was in payment for transportation to the international boundary line. Appellee could have taken a receipt for the property at this point and not issued a bill of lading calling for further shipment to a point within an adjacent foreign country over the lines of a foreign connecting carrier.

However, appellee did not choose to follow this seemingly permissible procedure. It issued an instrument which purports to be a through bill of lading and which clearly imports an obligation on the part of appellant to pay charges for transporting its property to El Oro, Mexico. It further appears that freight charges (for transportation in Mexico) were actually paid, although appellee received no part of them. In fact, appellee having been paid for transportation to the international boundary line, could not lawfully receive an additional sum of money for transporting the property from its yards in Laredo to said boundary line, in view of the rules and regulations of the Interstate Commerce Commission relating to the establishment of uniform rates.

This, however,...