Waltham Mfg. Co. v. New York & T.S.s. Co.
Decision Date | 07 January 1910 |
Citation | 204 Mass. 253,90 N.E. 550 |
Parties | WALTHAM MFG. CO. v. NEW YORK & T. S. S. CO. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Francis P. Garland, for plaintiff.
Choate Hall & Stewart, for defendant.
This is an action to recover the value of an automobile, received by the defendant for shipment to Miami, Fla., which was delivered, contrary to the provisions of the bill of lading to a person who was not entitled to receive it. By the terms of the bill of lading the automobile was 'shipped by Waltham Manufacturing Company, * * * to be transported by the B. & M. (subject to all the conditions of this company's bill of lading), to New York, and there delivered (by lighter or cars at the risk of the shippers) to the pier of the New York & Texas Steamship Company (Mallory Line), * * * to be transported by steamer sailing from New York, * * * to the port of Brunswick; or, if destined beyond, to be there delivered, * * * at cargo owner's risk, to connecting carrier, or so on, by one connecting carrier to another until they reach the station or wharf nearest to the ultimate destination,' etc.
'If the words 'order' or 'order notify' are written immediately before or after the name of the party to whose order the property is consigned, the surrender of this bill of lading, properly indorsed, will be required before the delivery of the property at the destination.'
'Consignee, marks and destination.'
This bill of lading the plaintiff indorsed and attached to a draft, and deposited in bank, to be sent to Miami for collection of the draft. The defendant, instead of shipping the automobile to Brunswick and sending it thence by a connecting railroad to Miami, shipped it to Key West, and there delivered it to the master of a sailing vessel to be taken to Miami. This master took it to Miami, and there delivered it to M. J. McDonald, without requiring the bill of lading, and without authority.
The defendant seeks to avail itself of the provision for its protection in its bill of lading, that the property was to be delivered at Brunswick to the connecting carriers, at the owner's risk. To this the plaintiff replies that there was a deviation from the journey prescribed by the contract, and that, in such a case, the common carrier cannot avail itself of such a provision in its bill of lading to relieve itself from liability, but becomes an insurer. This principle is well established, both in England and America. Thorley v. Orchis Steamship Co., Ltd., [1907] 1 K. B. 660, 7 Am. & Eng. Ann. Cas. 281-283, and cases in note; Maghee v. Camden, etc., R. R. Transportation Co., 45 N.Y. 514, 6 Am. Rep. 124; Robertson v. National Steamship Co., 139 N.Y. 416, 34 N.E. 1053; 9 Am. & Eng. Enc. of Law (2d Ed.) 447-448, and cases cited. There seems to be some difference of opinion among judges as to whether the carrier will be precluded from setting up his contract for his relief, if it is shown that the loss was not caused by the deviation, but would have occurred in the same way if the contract had been performed literally. There is much authority to the effect that this makes no difference, that insurance on the cargo is lost by the deviation, and the carrier is relegated to his common-law liability. In the present case it is not necessary to consider this question, for if the automobile had been shipped to Brunswick, it would have been carried forward over another route by a different connecting carrier. If the bill of lading is the contract by which the parties are bound, there is no doubt of the defendant's liability.
The property was taken from Waltham in this state by the Boston & Maine Railroad, and was marked 'Order Waltham Manufacturing Company, notify M. J. McDonald, Miami, Florida, via Metropolitan S. S., c/o Mallory Line to Key West.' The shipping order was in this form, and the shipping receipt was given by the Boston & Maine Railroad accordingly. These shipping directions came into the hands of the defendant, with the goods which were sent according to the directions.
The contract of the Boston & Maine Railroad was only to deliver the property to another carrier on the route to the stated destination. The plaintiff's agent then sent this shipping receipt to the defendant's agent in...
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