Tubize Chattilon Corporation v. White Transp. Co.

• Decision Date: 14 February 1934
• Docket Number: No. 5113.,5113.
• Citation: 6 F. Supp. 15
• Parties: TUBIZE CHATTILON CORPORATION v. WHITE TRANSP. CO.
• Court: U.S. District Court — District of Maryland

6 F. Supp. 15

TUBIZE CHATTILON CORPORATION v. WHITE TRANSP. CO.

No. 5113.

District Court, D. Maryland.

February 14, 1934.

John H. Skeen (of Emory, Beeuwkes, Skeen & Oppenheimer), of Baltimore, Md., and Lewis, Adler & Laws, of Philadelphia, Pa., for plaintiff.

Thomas J. Tingley and Francis Key Murray, both of Baltimore, Md., for defendant.

CHESNUT, District Judge.

A motion for a new trial has been made and argued in this case. It has afforded opportunity for both counsel and court to more fully examine and consider the applicable law.

The result of the trial was a verdict for the plaintiff in the amount of $9,193.73 (including interest) for damages for loss of a part of a shipment of 85 cases of rayon delivered by the plaintiff at Hopewell, Virginia, to the defendant for transportation by motor truck to Bethlehem, Pa. The defendant is a common carrier of merchandise by motor trucks. The cases of rayon were delivered to the defendant's sub-agent at Hopewell, Va., on April 20, 1932, and the plaintiff was given two receipts therefor, one for 50 cases and one for 35 cases. The receipts were on the printed form of bill of lading called "Uniform Domestic Straight Bill of Lading adopted by carriers in official, Southern and Western territories, March 15, 1922, as amended August 1, 1930." They are in the ordinary form for railroad transportation and I understand the form is that prescribed by the Interstate Commerce Commission. See In the Matter of Bills of Lading, 52 I. C. C. 671, April 14, 1919.

The whole shipment of 85 cases was safely carried by the defendant's sub-agent from Hopewell, Va., to Richmond, Va., and there trans-shipped into two separate trucks of the defendant; one containing 60 cases went directly by road to Bethlehem, Pa., and safely delivered its cargo; the other constituting only a partial truck load went apparently with other merchandise through Baltimore to Philadelphia, where the defendant says its terminal station on that route was located, and there unloaded and delivered to a connecting carrier by truck, from whose possession it is said that it was stolen. The defendant's defence to the claim for its loss is based on the legal proposition that it was safely delivered to a connecting carrier and therefore the defendant had no liability for its safe carriage thereafter.

At the trial the view was taken that from all the evidence in the case, including the bill of lading and oral testimony, the defendant had contracted for a through shipment and delivery of the cases of rayon. The motion for a new trial is based chiefly on the legal proposition that the bill of lading is a written contract, which on its face limits the liability of the defendant carrier to safe transportation on its own line and absolves it from loss after safe delivery to a connecting carrier; and that parol testimony is not admissible for the purpose of either adding to or changing or varying the terms of the written contract. The view taken at the trial was that it was at least not clear that the bill of lading did so limit the carrier's liability and that other facts and circumstances in the relations between the shipper and carrier should be looked at to determine what was the actual contract between them. A more extended examination of the law than was possible at the trial satisfies me that the rule adopted was at least not prejudicial to the defendant, and I think is supported by several cases in the Supreme Court of the United States. Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, 31 S. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7 (which is the principal authority on the subject); Michigan Cent. Railroad Co. v. Mineral Springs Manufacturing Co., 16 Wall. 318, 324, 21 L. Ed. 297; Ogdensburg & L. C. Railroad Co. v. Pratt, 22 Wall. 123, 22 L. Ed. 827; Myrick v. Michigan Cent. R. Co., 107 U. S. 102, 1 S. Ct. 425, 27 L. Ed. 325. The federal law is controlling in a case of this kind, which is a question of general jurisprudence. Myrick v. Mich. Cent. R. Co., 107 U. S. 102, 1 S. Ct. 425, 27 L. Ed. 325; 10 C. J. 524.

The conflict between the English and the majority of the American cases (the latter including federal cases) as to whether a carrier is liable for loss on the lines of a connecting carrier seems to be really a conflict between what facts or circumstances will be regarded as satisfactory evidence of a contract for a through carriage, on the one hand, or only for proper forwarding by the initial carrier, on the other. Thus in Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, at page 197, 31 S. Ct. 164, 166, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7, it is said:

"The general doctrine accepted by this court, in the absence of legislation, is, that a carrier, unless there be a special contract, is only bound to carry over its own line, and then deliver to a connecting carrier. That such an initial carrier might contract to carry over the whole route was never doubted. It is equally indisputable that if it does so contract, its common-law carrier liability will extend over the entire route. * * * The English cases * * * have consistently held that the mere receipt of property for transportation to a point beyond the line of the receiving carrier, without any qualifying agreement, justified an inference of an agreement for through transportation, and an assumption of full carrier liability by the primary carrier. * * * There are American cases which take the same view of the question of evidence thus presented. * * * Upon the other hand, many American courts have repudiated the English rule which holds the carrier to a contract for transportation over the whole route, in the absence of a contract clearly otherwise, and have adopted the rule that unless the carrier specifically agrees to carry over the whole route, its responsibility as a carrier ends with its own line; and that, for the continuance of the shipment, its liability is only that of a forwarder. The conflict has therefore been one as to the evidence from which a contract for through carriage to a place beyond the line of the receiving carrier might be inferred."

The case then proceeds to discuss and hold valid the Act of Congress of June 29, 1906, ch. 3591, 34 Stat. 584, 595, known as the Carmack Amendment to the Hepburn Bill (49 USCA § 20), which, as is well known, imposed liability for loss on any point of the route in interstate commerce, on the initial carrier. See also Roberts, Federal Liabilities of Carriers, vol. I, pp. 683, 686. If the defendant had been a railroad the question could of course not arise as it would have been determined by the Act of Congress, but it is clear that the Act does not apply to common carriers by motor trucks although operating in interstate commerce. The defendant, therefore, says its liability should be determined by the majority rule in the United States unaffected by this federal statute, no state statute of Virginia or other state in the interstate carriage having been called to my attention.

Coming now to a closer examination of the provisions of the bill of lading, I am not convinced that, as applied to this transaction, it shows the clear limitation of liability contended for. The following provisions are to be particularly noted. The defendant, the White Transportation Company, is named as the carrier. It acknowledges the receipt of the property described — "marked, consigned and destined as indicated below, which said company * * * agrees to carry to its usual place of delivery at said destination, if on its own road or its own water line,...