Sou. Prod. Co. v. Nor. So. R. Co.

• Decision Date: 18 March 1926
• Citation: 144 Va. 422
• Parties: SOUTHERN PRODUCE COMPANY v. NORFOLK SOUTHERN RAILROAD COMPANY.
• Court: Virginia Supreme Court

Page 422

144 Va. 422

SOUTHERN PRODUCE COMPANY v. NORFOLK SOUTHERN RAILROAD COMPANY.

Supreme Court of Virginia, Richmond.

March 18, 1926.

Absent, West, J.

1. CARRIER — Connecting Carrier — Liability of Initial Carrier — Carmack-Cummins Amendment — Diversion or Reconsignment after Destination Reached — Case at Bar. — In the instant case, an action under the Carmack-Cummins amendment (U.S. Comp. Stat., 1923 Supp., section 8604-a, page 2356), the goods were delivered to defendant, the initial carrier, in Norfolk county, Virginia, to be transported to the shipper at Edgemoor, Del. It was alleged by the shipper that Edgemoor, Del., was a diverting point on the line of the Pennsylvania railroad and well known as such to the initial carrier. Before the shipment reached Edgemoor, the shipper directed the Pennsylvania Railroad Company, to whom the initial carrier had delivered the property, to divert it to Boston, Massachusettts, and the Pennsylvania Railroad agreed to and did divert the property as directed. No new bill of lading was issued or required en route, the shipment being made throughout on the original bill of lading issued by the initial carrier, which was not surrendered. It was alleged that the property was not delivered in Boston until after the lapse of a reasonable time and damages for this delay was asked against the initial carrier. The question to be determined was whether the initial carrier was liable for damages not alleged to have occurred either upon the line of the initial carrier ro upon that of any connecting carrier, between the point of origin and the point of delivery specified in the bill of lading issued by the initial carrier.

Held: That the initial carrier was not liable.

2. CARRIERS — Connecting Carrier — Liability of Initial Carrier — Carmack-Cummins Amendment — Diversion or Reconsignment after Destination Reached. — Under the Carmack-Cummins amendment (U.S. Comp. Stat., 1923 Supp., section 8604-a, page 2356), the initial carrier can only be held liable upon its own contract, of which the bill of lading is the evidence, which it is required to issue upon receipt of property for transportation. The imposition of the liability of the initial carrier arises then out of its own bill of lading. So that, if while the goods are upon its own line, in its own custody, the initial carrier itself diverts the shipment or changes its destination, its obligations are just as though by its original bill of lading it had contracted to transport to such substituted destination. But this cannot be true when the transportation over the line of the initial carrier has been completed, and its own contractual duty with reference thereto has been performed, if thereafter the shipper and the connecting carrier, without notice to the initial carrier, enter into another contract, verbal or written.

3. CARRIERS — Connecting Carrier — Carmack-Cummins Amendment — Connecting Carriers Agents of Initial Carrier. — Under the Carmack-Cummins amendment (U.S. Comp. Stat., 1923 Supp., section 8604-a, page 2356) the connecting carriers are the agents of the initial carrier, for whose negligence the initial carrier is made liable by statute only because of the contract of the initial carrier which is the bill of lading as issued or modified by the original carrier, and the connecting carrier is not the agent of the initial carrier in making a new and different contract for transportation.

4. CARRIERS — Connecting Carriers — Carmack-Cummins Amendment — Measure of Liability of Initial Carrier. — The liability of the initial carrier, under the Carmack-Cummins amendment (U.S. Comp. Stat., 1923 Supp., section 8604-a, page 2356), depends upon the extent of his obligation as evidenced by its own bill of lading. The initial carrier must issue a through bill of lading and becomes liable to the shipper for all damages caused by any connecting line, but this liability cannot be extended beyond the contract evidence by the bill of lading and that is to deliver the shipment at the place of destination therein named.

5. CARRIERS — Connecting Carriers — Carmack-Cummins Amendment — Bill of Lading — Diversion — Case at Bar. — Under the Carmack-Cummins amendment (U.S. Comp. Stat., 1923 Supp., section 8604-a, page 2356) every carrier receiving goods for transportation is required to issue a bill of lading, and its failure to do so does not relieve it of the responsibility imposed by the standard bill of lading which is so required. In the instant case, by agreement between the connecting carrier and the shipper, the place of destination was changed, and the loss occurred between the original destination and the new destination.

Held: That notwithstanding no new bill of lading was issued at the place of destination, the independent contract between the shipper and the connecting carrier could not increase the liability of the initial carrier under its contract, in the absence of any notice of or participation in such reconsignment or diversion of the shipment.

6. CARRIER — Connecting Carrier — Carmack-Cummins Amendment — Waiver of Terms of Bill of Lading. — The parties cannot waive the terms of the bil of lading contract, nor can the carrier by its conduct give the shipper the right to ignore these terms and hold the carrier to a different responsibility from that fixed thereby, nor can a shipper waive the stipulation of the contract any more than the carrier.

7. CARRIERS — Diversion or Reconsignment — Connecting Carrier — Carmack-Cummins Amendment. — A shipper can change and control the destination of his property, either by diversion or reconsignment, even after it has been delivered to a connecting carrier; he may freely interrupt the transportation, or have the shipment diverted at any intermediate point to some other destination, or have the property reconsigned when it reaches the destination originally named. This right the Carmack-Cummins Amendment (U.S. Comp. Stat., 1923 Supp., section 8604-a, page 2356) does not affect in any degree. That statute does not diminish this right of the shipper. But this right of the shipper in no degree increases the obligation imposed by that statute upon the initial carrier. They refer to different rights and obligations.

8. CARRIERS — Connecting Carrier — Diversion — Liability of Initial Carrier. — A diversion or change of the bill of lading of the initial carrier, while the goods are in the control or upon the ines of such carrier, modifies or extends the contract, but the exercise of this right after the shipment is in the possession of a connecting carrier, without the participation of the initial carrier, cannot affect the mutual rights of shippe and initial carrier or change their original contract.

9. CARRIERS — Connecting Carriers — Carmack-Cummins Amendment — Contract Cannot be Varied. — The contract of shipment — i.e. bill of lading — and the obligations incurred thereby and under the Carmack-Cummins Amendment (U.S. Comp. Stat., 1923 Supp., section 8604-a, page 2356) cannot be varied by the parties.

10. CARRIERS — Connecting Carriers — Carmack-Cummins Amendment — Liability of Initial Carriers. — It is essential, in order to recover of the initial carrier, to show that the injury is caused by some agent of the in tial carrier whom it has engaged to aid it in the performance of its contract, for that is the purpose of the statute (U.S. Comp. Stat., 1923 Supp., section 8604-a, page 2356), but its responsibility cannot be further extended so as to hold the initial carrier liable for the defaults of the shippers a own agents under other contracts to which the initial carrier is not a party.

11. CARRIER — Connecting Carrier — Liability of Initial Carrier — Carmack-Cummins Amendment — Diversion or Reconsignment after Destination Reached — Case at Bar. — In the instant case, an action under the Carmack-Cummins Amendment (U.S. Comp. Stat., 1923 Supp., section 8604-a page 2356), the goods were delivered to defendant, the nitial carrier, in Norfolk county Virginia, to be transported to the shipper at Edgemoor, Del. It was alleged by the shipper that Edgemoor, Del., was a diverting point on the line of the Pennsy vania railroad and well known as such to the initial carrier. Before the shipment reached Edgemoor, the shipper directed the Pennsylvania Railroad Company, to whom the initial carrier had delivered the property, to divert it to Boston, Massachusetts and the Pennsylvania railroad agreed to and did divert the property as directed.

Held: That this in ention of the shipper to divert the shipment by instructions to the Pennsylvania railroad, though known to the initial carrier, did not impose any additional obligation upon the initial carier, as the obligations imposed by the Carmack-Cummins Amendment are limited and controlled by the contract, the bill of lading.

12. CONTRACTS — Usages and Customs. — No usage or custom can be admitted to vary or control the express terms of a contract, but they may be admitted to determine that which by the contract is left undetermined. The parties, by the contract, may abrogate any custom, no matter how ancient or uniform, but such costom cannot abrogate the terms of a contract. Whenever there is a conflict, the cont act must control.

13. CARRIER — Connecting Carrier — Liability of Initial Carrier — Carmack-Cummins Amendment — Diversion or Reconsignment after Destination Reached — Case at Bar. — In the instant case, an action under the Carmack-Cummins Amendment (U.S. Comp. Stat., 1923 Supp., section 8604-a page 2356), the goods were delivered to defendant, the initial carrier, in Norfolk county, Virginia, to be transported to the hipper at Edgemoor, Del. It was alleged by the shipper that Edgemoor, Del., was a diverting point on the line of the Pennsylvania railroad and well known as such to the initial carrier. Before the shipment reached Edgemoor, the shipper directed the Pennsylvania Railroad Company, to whom the initial carrier had...