The Surrey
| Decision Date | 23 February 1886 |
| Citation | 26 F. 791 |
| Parties | THE SURREY. [1] v. THE SURREY. DIXON |
| Court | U.S. District Court — Southern District of New York |
Hyland & Zabriskie, for libelants.
E. B Convers, for claimant.
This libel was filed to recover the value of 200 cases of lemons brought by the steam-ship Surrey from Palermo to New York and discharged at Harbeck's stores, Brooklyn, on January 26, 1885, and there destroyed by frost. The lemons were shipped at Palermo by the International Line, and a bill of lading given by the agents of that line to the shipper reciting the receipt of them on board the steam-ship Penyghent, by which vessel they were expected to be forwarded. For some reason the Penyghent was delayed, and the steamer Surrey was chartered by the line to run in her place and the lemons in question were accordingly laden on board the Surrey. No bill of lading was given by the Surrey. The previous bill of lading, reciting the shipment on the Penyghent, made the goods deliverable to order in New York. That bill of lading was indorsed by the shippers, and forwarded by them to Dixon Bros., Montreal, for whom the goods were shipped, to be forwarded thither by rail from New York. At the top of the bill of lading signed by the agents of the line is a memorandum in red ink, 'For transhipment for Canada.' Dixon Bros., on receipt of the bill of lading, sent it to their agent in New York to attend to the receipt of the goods from the steamer, and to forward them to Montreal. During the week previous to January 21st, about which time the Penyghent was expected, the agent of Dixon Bros. called several times at the office of Seager Bros., the agents of the steam-ship line in New York, and stated that he expected fruit by the Penyghent, and inquired when her arrival was expected. No information as to the Penyghent could be given, or obtained; but the expected arrival of the Surrey was conspicuously bulletined in the office of the agents. No notice, however, of the transfer of the fruit from the Penyghent to the Surrey was received either by Dixon Bros., or by Seager Bros., the agents of the line. In the ordinary course of business the latter should have received notice of the transhipment; and there was evidence at the trial that such notice had been sent to them, but was not received, owing to some irregularities in the mail. There was some evidence, also, though not of a very satisfactory character, that notice of the transfer to the Surrey had been given to the shipper at Palermo. His testimony on this point was not obtained.
Only a small amount of fruit, some 4,500 cases, was brought by the Surrey. After several days of waiting for mild weather, on the morning of the 26th, the consignees of all the fruit except the 200 cases in question, by their representatives at the wharf, determined to accept the delivery of the fruit on that day; and accordingly the whole number, 4,500 cases, were landed upon the dock. The day proved cool. At 11 o'clock A.M. the thermometer was 29 deg. Fahrenheit; at 3 PM. 25 deg.,-- an exposure that such fruit could not bear for more than three or four hours without being destroyed. The number of boxes, however, being small, and the rest of the consignees being prepared to remove their fruit away at once, all the rest was removed without injury. But the libelants and their agent having no knowledge that the fruit had come by the Surrey, or that it was to be discharged, and no one else giving the 200 cases any attention, those cases were frozen and destroyed.
The weather on the 26th was beyond question unsuitable for the discharge of fruit, except upon the actual presence and readiness of the consignees to remove it immediately. A vessel is bound to make a delivery, and a delivery at a suitable time. A discharge upon the wharf, without notice to the consignee, is not a legal delivery; and a discharge at a time when, for want of notice, the goods cannot be removed by the consignee before they would be destroyed by frost, is not a discharge at a suitable time. The vessel in this case is therefore clearly liable, unless she is protected by the stipulations of the bill of lading.
The bill of lading recited the shipment on board the Penyghent, giving 'liberty to tranship any part of the cargo by steamer (blank). ' Under this blank power of transhipment I shall assume that the goods were lawfully transferred to the Surrey; and that the latter is entitled to all the benefits, and subject to all the obligations, of the bill of lading given for the Penyghent, and that notice of the transfer was given to the shipper at Palermo. The bill of lading provided that the goods should 'be delivered from the ship's deck, where the ship's responsibility shall cease, in the like good order and condition, at the port of New York, unto order or assigns. ' The following stipulations were also added:
The arrival of the ship was entered in the custom house on the 21st. On the same day, at 2:30 P.M., a general order was obtained from the collector for the landing of her cargo, together with a permit for the goods to remain on the wharf 48 hours from that time. The permit last named directed the custom-house inspector, at the expiration of 48 hours, to send the cargo remaining on the wharf, not permitted, to the proper general order store. The time covered by this permit had expired nearly three days before this fruit was landed. There is no evidence whether the permit was renewed or not.
It is a pervading rule of the maritime law that the master of a vessel intrusted as carrier with the custody of the property of a distant owner is bound to exercise reasonable care of the goods until delivery pursuant to the contract. This duty of reasonable care for the preservation of the property from loss arises in all situations and in all emergencies. Machl. Shipp. 428-430, 437, 443; Cargo ex Argos, L.R. 5 P.C. 135; The Spartan, 25 F. 44, 56. It is in accordance with this general obligation that, in the absence of any special stipulations in the bill of lading, if a cargo be duly landed, on notice to the consignee at the port of destination, and the consignee fails to appear, or refuses to take the goods, the master cannot abandon them, but is responsible for reasonable care of the goods, and must either hold them as bailee, or store them in the shipper's account. Richardson v. Goddard, 23 How. 39; The Grafton, 1 Blatchf. 173, 175; Redmond v. Liverpool, etc., 46 N.Y. 578; McAndrew v. Whitlock, 52 N.Y. 40, 46; The City of Lincoln, 25 F. 839, and cases there cited. Where the stipulations of the bill of lading require the consignee to be present and receive the goods as soon as the vessel is ready to unload, and that they shall be at the consignee's risk as soon as landed on the dock, and the consignee is duly notified, and attends in order to accept the goods as landed, and takes more or less charge of them, the stipulation is held to exempt the ship from subsequent loss or damage. The Santee, 2 Ben. 519; S.C. 7 Blatchf. 186; The City of Austin, 2 F. 412; The Kate, 12 F. 881. In such cases, as the consignee has due notice of discharge, and accepts the goods, the duty of protecting the property is cast by the contract upon him, and the ship is relieved. In the case of The Santee, 7 Blatchf. 186, 189, WOODRUFF,, J., says: 'On the extreme question, what, under such a bill of lading, the carrier should do in a case in which the consignee could not be found, or should not appear at all to receive the goods, it is not necessary to express an opinion. ' That is the precise question presented in this case. It is answered, in my judgment, by the general rule of the maritime law above cited.
As respects all such stipulations inserted by the carrier for his exemption from liability, the ordinary rule is that they are to be strictly construed. They are not to be...
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