Texas & P. Ry. Co. v. Clayton

• Decision Date: 08 December 1897
• Citation: Texas & P. Ry. Co. v. Clayton, 84 F. 305 (2nd Cir. 1897)
• Parties: TEXAS & P. RY. CO. v. CLAYTON et al.
• Court: U.S. Court of Appeals — Second Circuit

84 F. 305

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

United States Court of Appeals, Second Circuit.

December 8, 1897

Rush Taggart and Arthur H. Masten, for plaintiff in error.

Evarts Choate & Beaman and Treadwell Cleveland, for defendants in error.

Before WALLACE and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

This is a writ of error by the defendant in the court below to review a judgment which was entered upon a verdict directed in favor of the plaintiffs upon the trial.The action was brought to recover damages alleged to have been sustained by the plaintiffs by the burning of 467 bales of cotton on the 12th of November, 1894, at Westwego, in the state of Louisiana.

The facts established upon the trial were that the plaintiffs co-partners, at Liverpool, England, by the style of Newall &amp Clayton, through their agents, Castner & Co., at Bonham Tex., delivered in October, 1894, to the defendant, four lots of cotton for transportation; the contract being evidenced by four bills of lading, identical in form except as to the number of bales, the marks on the cotton, and the numbers of the bills of lading.The material parts of the bills of lading were as follows:

'Received by the Texas & Pacific Railway Co., * * * of Castner & Co., for delivery to shippers' orders, or their assigns, at Liverpool, England, he or they paying freight and charges as per margin, bales of cotton (here follow the number of bales and the marks).From Bonham, Texas, to Liverpool, England.Route via New Orleans and the Elder & Demster & Co. Steamship Line (here follow the amount of freight and advance charges), upon the following terms and conditions, which are fully assented to and accepted by the owner, viz.: (1) That the liability of the Texas & Pacific Railway Company in respect to said cotton, and under this contract, is limited to its own line of railway, and will cease and its part of this contract be fully performed upon delivery of said cotton to its next connecting carrier; and in case of any loss, detriment, or damage done to or sustained by said cotton before its arrival or delivery at its final destination, whereby any legal liability is incurred by any carrier, that carrier alone shall be held liable therefor in whose actual custody the cotton shall be at the time of such damage, detriment, or loss.* * * (6) That the said cotton shall be transported from the port of New Orleans to the port of Liverpool, England, by the Elder, Demster & Co. Steamship Line, and with liberty to ship by any other steamship or steamship line; and that, upon delivery of said cotton to said ocean carrier at the aforesaid port, this contract is accomplished; and thereupon and thereafter the said cotton shall be subject to all the terms and conditions expressed in the bills of lading and master's receipt in use by the steamship or steamship company or connecting lines by which said cotton may be transported; and, upon delivery of said cotton at usual place of delivery of the steamship or steamship line carrying the same at the port of destination, the responsibility of the carriers shall cease.'

Two of the bills of lading were dated October 10th; one was dated October 15th; and one was dated October 23d.There was an existing arrangement at the time between the defendant and the Elder, Demster & Co. Steamship Line, by which the former was to forward the latter, during the months of October, November, and December, 1894, 20,000 bales of cotton for transportation by the steamship line to Liverpool; and it was understood between them that the cotton was to be received by the steamship line at the defendant's wharf at Westwego.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 be 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.The course of business between the defendant and the steamship line was as follows: 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 Westwego.Upon the receipt of the waybill and car at Westwego, a skeleton would be made out by the defendant's clerks at Westwego, for the purpose of unloading the car property, 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 the car.The cotton would then be taken from the car, examined to see that the marks corresponded with the items upon the skeleton, and deposited in one of the sheds upon the wharf designated by the check clerk, and the check clerk would mark upon the skeleton the location of the cotton.The sheds were subdivided into 15 sections, and the location of the cotton was left to the check clerk. the skeleton would then be transmitted to the general office of the defendant, and the defendant would make out a 'transfer sheet,' containing substantially the information contained in the waybill, and transmit the transfer sheet to the steamship line.The steamship line, upon receiving the transfer sheet understood that cotton for their vessels was on the wharf at Westwego, and would collate the transfers relating to such cotton as was destined by them for a particular vessel, return the transfer sheet to the defendant, and advise defendant what vessel would take the cotton.Thereafter the steamship company when it was ready to take the cotton, would send the vessel with their stevedores to the wharf.The defendant's clerk would go with the master of the vessel, and identify and count out the particular lots of cotton designated for his vessel.The master would 'O.K.' them, and the stevedores would thereupon take the cotton, and put it on board the ship.Before the cotton left the wharf, the defendant would obtain a receipt for it from the master of the ship.

The particular cotton involved in this suit had arrived and been...