Reiss v. Texas & P. Ry. Co.

• Decision Date: 07 December 1899
• Docket Number: 77.
• Citation: Reiss v. Texas & P. Ry. Co., 98 F. 533 (2nd Cir. 1899)
• Parties: REISS et al. v. TEXAS & P. RY. CO.
• Court: U.S. Court of Appeals — Second Circuit

98 F. 533

REISS et al. v. TEXAS & P. RY. CO.

No. 77.

United States Court of Appeals, Second Circuit.

December 7, 1899

Treadwell Cleveland, for plaintiffs in error.

Rush Taggart, for defendant in error.

Before WALLACE and SHIPMENT, Circuit Judges.

SHIPMENT Circuit Judge.

The plaintiffs, who are cotton merchants in the city of Liverpool, and aliens, delivered on October 30, 1894, at Temple, in the state of Texas, to the defendant, a railroad corporation created by virtue of an act of congress, and a common carrier from places in Texas to New Orleans, 200 bales of cotton, to be carried by the defendant from Temple to the port of New Orleans, and thence by Elder, Dempster &amp Co.'s line of steamships to Bremen, Germany.The conditions of the bill of lading which was issued for this cotton were divided into two classes, one relating to the service until, and the other relating to the service after delivery at the port of New Orleans.All the bales arrived at West Wego on November 6, 1894, and 160 bales were unloaded on the next day, and the remaining 40 were also unloaded, but the day of unloading does not appear.All the cotton was destroyed by fire on the evening of November 12th.At this time the wharf was loaded to its full extent with cotton there being on the wharf over 20,000 bales, and 206 cars containing 8,000 bales.West Wego is in the parish of Jefferson, on the west bank of the Mississippi, opposite the upper end of the city of New Orleans.Before the construction by the defendant of a wharf and terminals at this point, it delivered all export cotton at its freight depot and warehouse on the east side of the river, in New Orleans proper.The West Wego structure was completed in the early spring of 1893, and thereafter all export cotton coming from Texas was delivered to the steamship companies at West Wego, which was the port of New Orleans for export cotton in the popular business and commercial sense, though it was not included by statute of the United States in the customs district or port of entry of New Orleans until March 30, 1896.The conditions of the bill of lading which are important in this case'with respect to the service until delivery at the port of New Orleans' are as follows:

'(1) No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damages thereto by causes beyond its control, or by floods, or by riots, quarantine, strikes, or stoppage of labor, or by leakage, breakage, chafing, loss in weight, changes in weather, heat, frost, wet, or decay, or from any cause if it be necessary or is usual to carry said property upon open cars.'

'(3) No carrier shall be liable for loss or damage not occurring on its own road, or its portion, of the through route, nor after said property is ready for delivery to the next carrier or to consignee.'

'(11) No carrier shall be liable for delay, nor in any other respect than as warehouseman, while the said property awaits further conveyance; and, in case the whole or any part of the property specified herein be prevented by any cause from going from said port in the first steamer of the ocean line above stated leaving after the arrival of said property at said port, the carrier hereunder then in possession is at liberty to forward said property by succeeding steamer of said line, or, if deemed necessary, by any other steamer.

'(12) This contract is executed and accomplished, and all liability hereunder terminates, on the delivery of the said property to the steamship, her master, agent, or servants, or to the steamship company, or on the steamship pier at the said port; and the inland freight charges shall be a first lien, due and payable by the steamship company.'

The defendant was in the habit, in 1894, of making contracts with divers steamship companies, including Elder, Dempster & Co.'s line, in New Orleans, by which they were to transport to European ports cotton received by them at the defendant's wharf at West Wego.The particular contract under which Elder, Dempster & Co. were to transport the plaintiffs' bales was dated October 19, 1894, and was in the form of a letter to the agents of the steamship company from the agent of the defendant, saying that he had engaged 1,000 bales of cotton for shipment by their line to Bremen at a specified rate.The course of business between the steamship lines and the defendant was stated in Texas & P. Ry. Co. v. Clayton,28 C.C.A. 142, 84 F. 305, and was as follows:

'This wharf was at the terminus of a branch of the defendant's line of railway on the bank of the Mississippi river, and was built out over the river far enough so that cars could run upon the tracks in the rear of the wharf and unloaded, and vessels come to the front of the wharf and receive the freight thus unloaded.It was controlled exclusively by the defendant, and used by it for the temporary storage of freight of all kinds brought over its railway and awaiting delivery to the consignees or for transportation by vessels.* * * Upon the shipment of the cotton in Texas, bills of lading would be issued to the shipper.Thereupon the cotton would be loaded in cars of the defendant, and a waybill giving the number and initial of the car, the number and date of the bill of lading, the date of the shipment, the names of consignor and consignee, the number of bales forwarded on that particular waybill, the marks on the cotton, the weight, etc., would be given to the conductor of the train bringing the car to West Wego.Upon the receipt of the waybill and car at West Wego, a skeleton would be made out by the defendant's clerk at West Wego, for the purpose of unloading the car properly, containing the essential items of information covered by the waybill, and the date of the making of the skeleton.When this skeleton had been made out, and the car had been side-tracked at the rear of the wharf, the skeleton would be taken by the defendant's check clerk, and he would proceed with a gang of laborers to open

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