Warren v. Portland Terminal Co.

• Decision Date: 06 March 1922
• Citation: 116 A. 411
• Parties: WARREN et al. v. PORTLAND TERMINAL CO.
• Court: Maine Supreme Court

116 A. 411

WARREN et al.

v. PORTLAND TERMINAL CO.

Supreme Judicial Court of Maine.

March 6, 1922.

Agreed Statement from Supreme Judicial Court, Cumberland County, at Law.

Action by Fiske Warren and others against the Portland Terminal Company.On agreed statement of facts.Judgment for defendant.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ.

Bradley, Linnell & Jones, of Portland, for plaintiffs.

Charles H. Blatchford and George E. Fogg, both of Portland, for defendant.

DEASY, J.The plaintiffs, S. D. Warren & Co., paper manufacturers, are a partnership, with mills at Cumberland Mills and elsewhere.The defendant owns and operates wharves in Portland and a line or railroad between its wharves and Cumberland Mills.Its wharves are equipped with apparatus for discharging coal and other merchandise from ships.Its tariff schedule which as a public service corporation it has filed with the Public Utilities Commission provides, among other things, a rate for discharging coal.

On August 27, 1917 the ship Binghampton arrived at Portland with a cargo of coal consigned to the plaintiffs and destined for Cumberland Mills.Under the contract of carriage between the plaintiffs and the shipowners four days were allowed for loading and discharging.Beyond such time demurrage at a stipulated rate was provided for; 2 days 12 1/2 hours of the time remained for discharging.

The ship was not unloaded until September 10th.The plaintiffs thereupon became liable and paid to the shipowners as demurrage the sum of $7,208.81, and, claiming that the defendant was under obligation to discharge the cargo, and that it was responsible for the delay, they have brought this suit to recover the sum paid the shipowners as demurrage.

It is unquestioned that on the day of the ship's arrival the cargo was tendered to the defendant for discharge and transportation to Cumberland Mills.

Admitting its obligation to discharge the ship, and that under ordinary conditions the unloading would have been completed on August 31st, the defendant says that the delay until September 10th was entirely due to a longshoremen's strike for which it is not responsible.

Thereupon the plaintiffs reply that, notwithstanding the delay was due to a strike, the defendant is responsible for all damages.

Numerous authorities treat of the liability of common carriers that have received goods for transportation.In such cases the liability is that of insurers.Nothing will excuse failure to transport such merchandise safely except act of God or public enemies, inherent defects in the merchandise, or fault of the shipper.Carriers are also bound to transport such merchandise promptly.But the carrier is not an insurer of prompt transportation.Its duty is that of reasonable diligence.For mere delay, not affecting the safety of the merchandise transported, there is no liability if due diligence is proved.

"In cases like the present, for delay in receiving and carrying the goods, the carrier is not an insurer."Railway Co. v. Hollowell, 65 Ind. 194, 32 Am. Rep. 67;The Richland Queen, 254 Fed. 668, 166 C. C. A. 166;Ecton v. Chicago Railway Co., 125 Mo. App. 223, 102 S. W. 575;Geismer v. Lake Shore R. Co., 102 N. Y. 563, 7 N. E. 828, 55 Am. Rep. 837;Railway Co. v. Thompson(Tex. Civ. App.)103 S. W. 684;Railroad Co. v. Cheatwood, 14 Ala. App. 175, 68 South. 722;Railway Co. v. Hurst(Tex. Civ. App.)135 S. W. 599;Bacon v. Railway Co., 155 Ill. App. 43; 10 Corpus Juris, 283.

The carrier must "exercise reasonable care and diligence * * * to transport in a reasonable time, without unnecessary delay."Johnson v. Railroad, 111 Me. 266. 88 Atl. 988;Young v. Railroad Co., 113 Me. 116, 93 Atl. 48.

With greater reason the liability of a carrier is not that of insurer where the merchandise, though tendered to, has not been received by, it.

Anciently the liability of a common carrier, like that of any other bailee, depended upon proof of negligence.Difficulties encountered by plaintiff in making this proof induced the adoption of a stricter rule making the liability of a common carrier, intrusted with goods for shipment, a qualified insurance liability.

This rule has never been so far extended as to impose an insurer's liability upon a carrier in respect to goods not intrusted to it.In such cases care and diligence are the tests.

But the plaintiffs argue that, while all this may be true where delay is due to such causes as accident or freight congestion, it is not true of strikes causing delay.A strike it is urged is the act of the carrier's servants, and for these acts it is responsible.It is true, of course, that a master is charged with responsibility for the acts of its employee within the scope of his employment.But refusal to be employed is not within the scope of his employment.A servant may or may not be justified in refusing to work, but his refusal is not a part of his work.

Moreover, when an employee, without the consent of his employer, strikes and refuses to return to his work, he is no longer an employee.Hutchinson on Carriers(2d Ed.) § 334;Geismer v. Railway Co., 102 N. Y. 570, 7 N. E. 828, 55 Am. Rep. 837;Railway Co. v. Hollowell, 65 Ind. 195, 32 Am. Rep. 68.

Some authorities support the plaintiff's contention that a "peaceable strike" cannot be a good defense to an action against a carrier for delay in transporting goods intrusted to it for carriage.Strikes accompanied by violence will, but peaceable strikes will not, so these cases say, excuse a carrier's delay in carrying merchandise received by it for transportation.Note35 L. R. A. 625, and citations.

The opinions in these cases must be based upon one of two theories:

(1) That one who has been an employee, but who has struck and refused to return to his work, is still an employee for whose conduct the employer is responsible; or

(2) That a common carrier's implied contract of insurance applies not only to safety, but to promptness of transportation, and (if applicable to the case at bar) extends not only to goods received for carriage, but to those tendered, though not received.We think that neither of these theories is sound.

With actions upon express contracts we are not concerned, nor are we concerned with actions for loss of or injury to goods in transit for which the law makes the carrier liable as insurer.To such actions strikes cannot be interposed as a defense.

For damages caused by mere delay a carrier is responsible only when it fails to exercise reasonable diligence and care.It must exercise reasonable diligence in supplying itself with suitable and sufficient facilities and employees, in averting strikes, and saving its patrons from strike losses.If it performs this duty, it cannot be held liable through having imputed to it the fault of persons, once its servants, who have by striking put an end to the relation of master and servant.

The only case called to our attention where a strike was set up as a defense to an action against a carrier for refusal to receive goods for transportation is Murphy Hardware Co. v. Railway Co., 150 N. C. 703, 64 S. E. 87322 L. R. A. (N. S.) 1200, 17 Ann. Cas. 481.In this case certain cattle were tendered for shipment.The railroad company refused to receive them because of a strike on its road.No violence or intimidation was claimed.The action was to recover a statutory penalty, but the court says that the statute was "enacted in aid of the common law."The presiding justice ruled that "the defense pleaded cannot avail the defendant even if true."This was held by the full court to be error.A new trial was granted.

We hold that the defendant was bound to discharge the cargo of coal and to transport it to Cumberland Mills within a reasonable time.What a reasonable time is depends upon the "circumstances of the particular case."Johnson v. Railroad, 111 Me 263, 88 Atl. 988;Empire Co. v. Philadelphia Co., 77 Fed. 919, 23 C. C. A. 564, 35 L. R. A. 623; 10 Corpus Juris, 286.

The defendant was not necessarily bound to discharge the coal in a time that would have been reasonable under...