The Guiding Star

• Decision Date: 27 January 1893
• Docket Number: 1,697.
• Parties: THE GUIDING STAR. v. THE GUIDING STAR. BENNITT
• Court: U.S. District Court — Southern District of Ohio

53 F. 936

THE GUIDING STAR.

BENNITT v. THE GUIDING STAR.

No. 1,697.

United States District Court, S.D. Ohio, Western Division.

January 27, 1893

Roelker & Jelke and Kittredge & Wilby, for libelant.

Ramsey Maxwell & Ramsey and Stephens, Lincoln & Smith, for respondent.

Statement by SAGE, District Judge:

The libel in this case is to enforce the libelant's claim against the steamer Guiding Star for $17,351.94, the alleged value of 238 bales of raw cotton, received by said steamer in good order and condition from W. P. McBath & Co., doing business in the state of Mississippi, who had bought the same by order and for the account of the libelant. It is averred that 100 bales of said cotton were delivered to said steamer on the 15th day of January, 1890, and 138 bales on the 22d of January, 1890, all to be transported without delay, in like order, to the port of Cincinnati, Ohio, unavoidable dangers of the river, collision, explosion, and fire excepted; and that said steamer then and there issued and delivered to said McBath & Co., who thereafter indorsed their name in blank thereon, two bills of lading for said cotton, signed by the duly-authorized agent of said steamer and its owner associated with others in the business of transportation under the name of the Southern Transportation Company, and that said bills of lading so indorsed were transmitted to the libelant, who is the owner and holder thereof.

The libel further sets forth that by a statute of the state of Mississippi entitled 'An act to define the liability of persons and corporations issuing bills of lading and warehouse receipts,' dated March 16, 1886 it is enacted as follows:

'Section 1. That every bill of lading or instrument in the nature or stead thereof, acknowledging the receipt of cotton or other things, shall be conclusive evidence in the hands of every bona fide holder, whether by assignment, pledge, or otherwise, as against the person or corporation issuing the same, that the cotton or other things have been actually received for transportation.

'Sec. 2. That the receipt of a warehouseman, or instrument in the nature or stead thereof, shall be conclusive evidence in the hands of every bona fide holder, whether by assignment, pledge, or otherwise, as against the person or corporation issuing the same, that the cotton or other things mentioned in the receipt have been actually received for storage.'

The libel further avers that the force and effect of said act, as defined and construed by the courts of Mississippi, is that it is not a mere rule of evidence, but that it determines the character and legal effect of the contract evidenced by the bill of lading, making it conclusive evidence in the hands of every bona fide holder, whether by assignment, pledge, or otherwise, as against the person or corporation issuing it, that the cotton or other freight described in the bill of lading has been actually received for transportation, that the two bills of lading, referred to were signed, issued, and delivered by the duly-authorized agent of said steamer and its owner, associated with others in the business of transportation under the name of the Southern Transportation Company, to said firm of McBath & Co., in the state of Mississippi, and with reference to the laws of said state, and that the libelant was and is the bona fide holder of said bills.

It is further averred that the said steamer negligently and carelessly left said cotton at People's landing near Riverside, Miss., uncovered and unprotected, and without guard or watch, and that no provision or security against fire was provided, nor any means to extinguish fire, whereby, and in consequence whereof, while said cotton was so lying on said wharf in the custody of said steamer or its agents, and after the signing, issuing, and delivery of said bills of lading, it was totally destroyed by fire, and wholly lost to the libelant, to his damage in the sum aforesaid.

The answer denies the receipt of the cotton, or that said steamer ever agreed to carry it, and avers that a short time prior to January 25, 1890, it was taken to People's landing, a little below Rosedale, on the Mississippi river, by said McBath & Co., and there delivered to the keeper of said landing, or some other party as agent of said McBath & Co., to hold for them for shipment 'on some steamboat which should take it at said landing;' and while so lying upon said wharf, and in the custody of said owners or agents, it was wholly destroyed by fire.

The answer further sets forth that, if said bills of lading be held to be the bills of lading of said steamer, the provisions thereof are to the effect that, in the event of the destruction by fire of the property therein described, the carrier should not be responsible therefor.

SAGE, District Judge, (after stating the case.)

The facts in this case are in the main undisputed. The Southern Transportation Company was neither a corporation nor a partnership. Each of the boats included in it did business solely on its own account. There was no community of interest, no sharing of profits or losses. The arrangement was that the boat first at a landing should take on its own account whatever freight was there deposited for shipment. The object in forming the association was to increase business by preventing delays and maintaining regularity in shipments. The boats had regular dates and hours for leaving New Orleans and Cincinnati, but no time schedule for intermediate points, and the arrangement that the first boat should take the freight was made to prevent delays resulting from holding freight for particular boats.

When the bills of lading referred to in the libel were issued, James Burke was southwestern freight agent for the Cincinnati Hamilton & Dayton Railroad, with headquarters at Greenville, Miss., and had been employed in that capacity about five years. He had in his possession blanks of a joint bill of lading; the top part of it for steamboats, and the bottom part for railroads. On the 15th of September, 1889, he was authorized in writing by the masters, respectively, of the steamers Golden Rule, Mary Houston, Guiding Star, Sherlock, and U. P. Schenck, to sign the joint bills of lading in use between the Southern Transportation Line and the Cincinnati, Hamilton & Dayton road, and to represent their boats as agent for such business. This authority continued, and was unrevoked at the time of the issuing of the bills of lading aforesaid. The cotton referred to in the libel was purchased by McBath & Co. upon the order of the libelant. McBath & Co. made the purchase and took the bills of lading in their own name. They then drew at sight on the libelant for the amount, and attached the drafts, which were to the order of the bank of Rosedale, to the bills of lading, which they indorsed in blank, and had the drafts cashed by the bank, and the bank sent them forward. The cotton, as it was brought in, was placed in the cotton yard at Rosedale owned by Davis, cashier of the bank. The bill of lading, dated on the 15th of January, was signed by McGowan, Burke's clerk, in Burke's name, while the cotton was in Davis' cotton yard. McGowan testifies that he was sent to Rosedale by Burke, and authorized to sign his name to bills of lading for this cotton. The other bill was signed by Davis himself, in Burke's name, on the 22d of January, when the cotton therein described was yet in Davis' yard; and Davis testifies that he signed by verbal authority given him by Burke. The signature was at the end of the joint bill, which contained first a bill for the steamer, then, with a line separating, the bill for the Cincinnati, Hamilton & Dayton Railroad Company, stipulating that upon the arrival at Cincinnati, and delivery of the property 'described in the above bill of lading' in good order to them as therein consigned, they would receive and forward the property. The portion of the bill relating to the steamer carriage stipulated for the delivery of the cotton at the port of Cincinnati, Ohio, and the description was of 138 bales of cotton marked 'B. A. T. H. (138) shipped to order Jewett City, Conn. Notify Henry T. Bennitt, Norwich, Conn.'

On the 22d of January, Davis, as cashier of the bank, issued a guaranty to Burke to deliver the cotton on the bank of the river at People's landing, which is about a mile from Rosedale. He testifies that Burke wished this as security that the cotton would be transferred from the cotton yard in Rosedale to the landing, and that it was delivered in accordance with the terms of the guaranty on the 25th of January, and placed within a foot or two of the water's edge. On the morning of the 26th it was discovered to be on fire. It had been left in the open air, uncovered, and there was no guard placed over it. The testimony does not disclose the origin or the cause of the fire. The landing keeper who had charge slept that night in the warehouse, about 75 or 100 yards from the landing. McBath, having been notified of the fire, reached the landing about 2 o'clock in the afternoon of the 26th. The cotton was still burning, and all but about 75 or 100 bales, some of which was then smoking, had been consumed. These 75 or 100 bales were destroyed by the fire that afternoon and the night of the 26th. There were no engines or other appliances at hand to extinguish fire. McBath & Co. paid for the storage of the cotton on the landing. At the time of the fire the Guiding Star was below Rosedale, coming up the river. She was the first boat of the line that passed up after the bills of lading were issued. She passed Rosedale Monday night, January 28th, according to the testimony of Capt. Hegler, without landing, because she was not hailed, or notified to do so. The bill of...