Ocean S. S. Co. v. Savannah v. Savannah Locomotive Works & Supply Co.
| Citation | 63 S.E. 577,131 Ga. 831 |
| Parties | OCEAN S. S. CO. OF SAVANNAH v. SAVANNAH LOCOMOTIVE WORKS & SUPPLY CO. |
| Decision Date | 15 January 1909 |
| Court | Supreme Court of Georgia |
Rehearing Denied Feb. 10, 1909.
Syllabus by the Court.
The common-law obligation of a carrier by sea is to receive goods which it is able and accustomed to carry, in the order of their tender, without preference to any shipper.
[Ed Note.-For other cases, see Shipping, Dec. Dig. § 101 [*]]
At common law a carrier's duty to carry was limited to its facilities for transportation. A navigation company, whose charter confers no power of eminent domain, nor imposes any public duties, is not to be classed as a public or quasi public institution, and is not bound to provide sufficient facilities to carry all goods which may be offered to it. It may decline to receive goods for transportation in excess of its carriage capacity.
[Ed Note.-For other cases, see Shipping, Dec. Dig. § 101. [*]]
A carrier, not a public institution, may select the character of the goods it proposes to carry, or discontinue to carry a particular commodity.
[Ed. Note.-For other cases, see Carriers, Dec. Dig. § 39. [*]]
A common carrier by sea cannot lawfully reject some goods which it professes to carry, and afterwards receive and transport other goods, where at the time of the tender there is room in the vessel for the rejected goods, and the safety of the vessel will in no wise be imperiled.
[Ed. Note.-For other cases, see Shipping, Dec. Dig. § 101. [*]]
The carrier's common-law obligation of indifferently serving the public in the receipt and transportation of goods does not inhibit a carrier by sea from making "bookings" of freight; that is, from making specific arrangements for the transportation of goods by a particular vessel, in advance of its sailing day, provided this privilege is indifferently extended to all patrons, or if the grant of this privilege to shippers of one commodity does not interfere with the carrier's discharge of duty to the shippers of other commodities with respect to the receipt and transportation of their goods. The same rules which govern a carrier by sea in the reception of goods for transportation apply to the carrier's engagements to transport by a particular vessel, or within a specified limit of time.
[Ed. Note.-For other cases, see Shipping, Dec. Dig. § 101. [*]]
There was evidence authorizing a finding that the defendant discriminated against the plaintiff in the reception and transportation of lumber tendered for shipment, and the court did not abuse his discretion in granting an ad interim injunction.
Error from Superior Court, Chatham County; Geo. T. Cann, Judge.
Action by the Savannah Locomotive Works & Supply Company against the Ocean Steamship Company of Savannah. Judgment for plaintiff, and defendant brings error. Affirmed.
A carrier, not a public institution, may select the character of the goods it proposes to carry or discontinue to carry a particular class.
The Ocean Steamship Company is a common carrier operating three vessels between the ports of Savannah, Ga., and Boston, Mass., and six vessels between the ports of Savannah and New York. The Savannah Locomotive Works & Supply Company is a corporation engaged in buying and selling lumber to persons living in Boston and other eastern points. In September and October, 1907, there occurred at the port of Savannah a congestion of cotton and lumber shipments destined from Savannah to Boston. The plaintiff brought suit against the carrier to enjoin certain discriminations against it, alleged to be as follows: (1) The carrier received and transported, in preference to the lumber offered it by the plaintiff, the lumber of other shippers of later tender, where the same was offered it under through bills of lading issued by railroads at points in the interior. (2) It received and transported, in preference to the plaintiff's lumber, cotton and naval stores of later tender offered by other shippers. (3) It contracted with persons dealing in cotton in advance of the sailing day of a vessel that it would carry the cotton thus agreed to be transported on a particular steamer, but declined to make in advance of the sailing of a vessel a similar contract with the plaintiff or other lumber merchants to carry lumber on a particular steamer, and the carrier transported the cotton of other patrons in compliance with its contract, and refused to receive and transport the plaintiff's lumber of prior tender. The steamship company denied that it discriminated against the plaintiff in favor of other shippers. It denied that it discriminated against lumber in favor of cotton and other articles of commerce in the facilities afforded for transportation. It admitted that it made with shippers of cotton specific engagements in advance for the shipment of cotton on particular vessels, where such cotton was intended for foreign shipment by way of New York, and that it refused to "book" ahead lumber, because it was unable, in the course of its business as a common carrier, to contract reservations for future shipments of lumber by its vessels for the reasons set out in the answer. On the interlocutory hearing the defendant was enjoined from "booking future shipments of cotton and other articles of commerce for persons dealing in the same until it places plaintiff upon a substantially similar basis for booking lumber for future shipment, wherever the storage capacity and safety of the ships permit such equality of basis of booking; from receiving or carrying any lumber or other articles of commerce of similar character and similarly circumstanced tendered to defendant for shipment until it receives and carries lumber of the plaintiff tendered to defendant at a prior date, the storage capacity and safety of defendant's ship permitting; and from receiving or carrying any articles of commerce similarly circumstanced for any other person until it carries for plaintiff lumber tendered to it for shipment prior to the date of the tender of said articles of commerce for shipment, the storage capacity and safety of defendant's ships permitting, and from refusing to receive and carry the lumber of plaintiff in the order in which it is tendered for shipment, provided the storage capacity and safety of the ship permits such reception and carriage."
Lawton & Cunningham and H. W. Johnson, for plaintiff in error.
Osborne & Lawrence and Hitch & Denmark, for defendant in error.
1. It was admitted in the answer of the defendant that it was a common carrier by sea, operating a certain number of vessels between the port of Savannah, Ga., and the ports of Boston, Mass., and New York City, and accustomed to carry the particular commodity offered it by the plaintiff, and against which it is alleged to have discriminated. From the earliest times it has been considered that a common carrier exercises a public employment, with public duties to perform. He cannot, like a merchant, receive or reject a customer at pleasure. He is bound to serve the public indifferently, and this duty with respect to the commonness of service was regarded by Judge Nisbet as the distinguishing trait of a common carrier. Fish v. Chapman, 2 Ga. 349, 46 Am.Dec. 393. In the case just cited it was said that "a common carrier is bound to convey the goods of any person offering to pay his hire, unless his carriage be already full, or the risk sought to be imposed upon him extraordinary, or unless the goods be of a sort which he can not convey, or is not in the habit of conveying." If the carrier be under obligation to accept goods which he proposes to carry, and there is room for them in his vehicle, the time for acceptance is when the goods are tendered. It therefore follows that all applying have an equal right to have their goods transported in the order of their tender. Indeed, the proposition is too well established at this late day to require citation of authorities. 6 Cyc. 372; 5 Am. & Eng. Enc. L. (2d Ed.) 1772; Hutch. Car. (3d Ed.) § 512.
Counsel for the plaintiff in error contend that at common law a carrier has the right to discriminate in the facilities offered to shippers of different commodities so long as shippers of the same commodities are all treated alike, and that this right of discrimination justifies a preference given to shippers of cotton over the shippers of lumber in the order of acceptance of these commodities for transportation. We have examined the cases cited to support this contention, as well as many others on the same general subject; and we find in all of them which concede to a carrier the right to discrimination among shippers a recognition of the principle that the right to discriminate only arises when the carrier has fulfilled his obligations to the shipper affected by the alleged discriminatory conduct. We do not think any case which has come under our notice goes further than to hold that, when a carrier extends a favor to one shipper, such favor is not to be regarded as an unjust discrimination so long as the carrier by granting the favor does not deny to other shippers any right which they may demand under the law, and the favored shipper is not given any material advantage in competition in business with them. A brief reference will be made to some typical cases to illustrate the accuracy of our analysis. There are a considerable number of decisions which hold that at common law the carrier was under no duty to charge every patron the same rate of carriage; that his duty was to charge a reasonable rate, and, if the rate charged was reasonable, one shipper could not lawfully complain that other shippers were charged a less rate. Johnson v. Pensacola & P. R Co., 16 Fla. 623, 26 Am.Rep. 731; Ragan v. Aiken, 9 Lea, 609...
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