Texas & P. Ry. Co. v. Callendar, 87.

• Decision Date: 07 December 1899
• Docket Number: 87.
• Citation: Texas & P. Ry. Co. v. Callendar, 98 F. 538 (2nd Cir. 1899)
• Parties: TEXAS & P. RY. CO. v. CALLENDAR et al.
• Court: U.S. Court of Appeals — Second Circuit

98 F. 538

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

No. 87.

United States Court of Appeals, Second Circuit.

December 7, 1899

Rush Taggart, for plaintiff in error.

Treadwell Cleveland, for defendants in error.

Before WALLACE and SHIPMAN, Circuit Judges.

SHIPMAN Circuit Judge.

The defendants in error, who were the plaintiffs in the circuit court, and are hereafter called the 'plaintiffs,' who are partners doing business in Liverpool, and are aliens delivered, in October, 1894, to the plaintiff in error hereinafter called the 'defendant,' a railroad corporation organized under an act of congress, and a common carrier of merchandise from sundry places in Texas to the port of New Orleans, 207 bales of cotton, to be carried to New Orleans by the defendant, and thence to Liverpool by the Elder, Dempster & Co.'s line and the Harrison line of steamships.All the cotton arrived at West Wego between October 17 and October 29, 1894, and was unloaded between the 17th and the 30th days of the same month.Notification by 'transfer sheets' of the arrival and unloading of the cotton was sent to the steamship companies for most of the cotton as early as November 2d, and for a few of the bales as late as November 10th, and by the return of the transfer was acknowledged by one of the companies.One hundred and eighty-seven bales of the plaintiffs' cotton were burned in a fire which broke out on the wharf on the evening of November 12th, and to recover damages for the loss this suit was brought.The relation of West Wego to the port of New Orleans, the ownership and manner of use of the defendant's wharf and terminals at West Wego, and the course of business between the defendant and the steamship lines in regard to cotton for export, were fully stated in the opinion of this court in Texas & P. Ry. Co. v Clayton,28 C.C.A. 142, 84 F. 305, affirmed in173 U.S. 348, 19 Sup.Ct. 421, 43 O.Ed. 725, and in Reiss and others against the same company (98 F. 533), which has recently been decided in this court, and need not be restated here.

The clauses in the bill of lading which bear upon the question in this case are as follows:

'(1) No carrier or party in possession of all or any of the property herein described shall be liable * * * for loss or damage to the property of any kind at any place occurring by fire, or from any cause except from negligence of the carrier.'

'(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.

'(4) Cotton is excepted from any clause herein on the subject of fire, and the carrier shall be liable as at common law for loss or damage of cotton by fire.No carrier shall be liable for differences in weights, or for shrinkage of any grain or seed carried in bulk.'

'(11) No carrier shall be liable for delay, nor in any other respect than as warehouseman, while the said property awaits further

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