conceded, there was never any notification | indicates that such was their intention. In given the steamship company of the arriv- order to justify the defendant's construcal of this cotton. Without that notification tion, the claimed extent of the departure counsel does not contend that either of those from the implied contract of the common clauses applies. The argument at the bar law must clearly appear in the language was devoted to maintaining the proposition which is used in the special contract. The that the railway company was exempted clause 'no carrier shall be liable for delay,' under clause 11, and the other clauses in the when applied to the facts in this case, meant bill of lading were referred to for the pur- that the defendant should not be liable for pose of giving point to that contention. It the delay of the steamship company, but de was urged at the bar that under the 11th lay would not occur until it knew or had clause the question of notification was im- heard of the time of arrival of the cotton. material, because, although a notification The same idea of notification to the conhad not been given, yet the cotton, upon its necting line must also run through the enarrival at the pier and after it had been tire paragraph, and, while the term 'awaitunloaded from the cars, "awaited further ing further conveyance' literally means conveyance," within the meaning of the 11th 'awaiting the time when the next carrier clause, and while awaiting further convey-shall take the property in hand,' it seems ance the carrier was by the express terms improbable that it was the intent of the of that clause relieved from liability other-language that the liability of the carrier wise than as warehouseman. In other should terminate upon the deposit of the words, that the carrier upon the arrival of property upon the wharf. The language is the cotton and unloading it at the pier, and too indefinite to support the conclusion that without giving any notification of its arriv-notice to the connecting line was not a preal, ceased to be a carrier, and became liable only for negligence which might cause the loss of the property, and there being no negligence proved in this case, the carrier was not liable.

requisite to the change of liability to that of a warehouseman. It may well be that such change would take place when the property was awaiting conveyance by the connecting line which had been notified to It was argued that clauses 3 and 12 were receive and convey, but until then it is not intended to cover such a case as would have awaiting conveyance; it is awaiting the acexisted in the one now before us had notice tion of the first carrier. The term must been given to the steamship company of the mean awaiting conveyance by the person uparrival of the cotton at Westwego, such no- on whom the duty of conveyance devolved, tice being understood by the steamship com- and no such duty devolved until notice of pany as a request to come and take away the arrival of the property had been given." the cotton; and in holding, as the court be- We agree with the views of the court be low did, that notification was necessary below, as expressed by Judge Shipman. We fore the 11th clause could apply, that clause do not think that the property can be said was thereby deprived of any separate effect, to await further conveyance the moment it because after notification the 3d or the 12th is dragged upon the pier of the railway comclause would exempt the carrier, and there-pany and unloaded from its cars, and before fore some further or other meaning must be given the 11th clause, so that it may operate in a case where no other clause would be available.

Upon this subject Circuit Judge Shipman, in the court below, said:

any notification is given to the steamship company that the cotton has arrived and awaits transportation by ship. In one sense it might be said that property awaited further conveyance if anywhere along the line of the railway company an engine of the train should break down, and the train be brought to a standstill for several hours, awaiting a new engine. In such case the cotton would not have arrived at the termination of the road of the railway com. pany, and in one sense it would certainly be awaiting further conveyance, because it had not arrived at the end of the route; but no one would suppose for a moment that during the time that the train was thus at a standstill the 11th clause of the bill of lading would be applicable. No court would give such a construction to the clause as would exempt the company under the circumstances stated.

"It is not claimed that the facts bring the carrier's liability within clause 3 of the bill of lading, which says that the liability shall end after the property 'is ready for delivery' to the next carrier, for it is conceded that the goods are not awaiting delivery be fore any notification of their arrival to the connecting carrier. McKinney v. Jewett, 90 N. Y. 267. It is, however, insisted that the fair construction of clause 11 is that, when the act of transportation of the cotton to the wharf at Westwego has been accomplished, and it has been stacked on the wharf, and is awaiting further action in the way of notification and advice to the succeeding carrier,' it awaits further convey- We are then to look for some fair and ance. By this construction the parties sub- reasonable meaning to be given to the term, stituted an immediate cessation of the lia- and we think that the court below has given bility of a carrier, and the assumption of such meaning to it. It cannot reasonably the liability of a warehouseman for the lia- be said that within the meaning of that bility imposed by the common law; and clause the property awaits further convey. doubtless they were at liberty to make a ance the moment it has been unloaded from contract of limitation which will be enforced the cars onto the pier of the defendant. As if the language of the bill of lading clearly' is stated by the circuit court, at that time

the property awaits the further action of | rival has been given the consignee; and it the defendant, and does not await further seems to us that the same reasoning holds conveyance until it has become the duty of here, and that goods are not awaiting furthe succeeding carrier to take it further, ther conveyance by a connecting carrier unafter notification that it has arrived and til the preceding carrier has given him noawaits delivery to it. After that time it tice of their existence at the place where may be said to await further conveyance, further conveyance is to be continued. We but up to that time it awaits the further do not dispute that there is a distinction action of the railway company. between the position of goods awaiting deThis meaning of the clause is not altered livery and those awaiting further conveyeven if the language used in other clauses ance; and the fact of such distinction is recmight also grant exemption upon the same ognized in Michigan C. R. Co. v. Mineral facts. We are not for that reason bound to Springs Mfg. Co. 16 Wall. 318, 327, 21 L. find some other and different meaning for ed. 297, 302, and it is therein stated that the 11th clause than such as we think is there is a clear distinction between propobvious and plain upon its face. The va- erty in a state to be delivered free to the rious propositions mentioned in these differ- consignee on demand and property on its ent clauses and the many contingencies pro-way to a distant point to be taken thence vided for therein under which the company by a connecting carrier. In the former case might claim exemption render it not sur- it might be said to be awaiting delivery; in prising that the same ground of exemption should possibly be covered by more than one provision in the bill, or that, in other words, the defendant should upon the same facts be exempt under more than one of its various and perhaps somewhat indefinite clauses. No rule of construction binds us to find some hidden or obscure meaning for a particular clause, because the simple and plain one which is seen upon its face provides for contingencies which may be also provided for in another clause of the same bill.

the latter to be awaiting transportation. But the analogy between goods awaiting delivery at the end of the route and goods awaiting further conveyance by a connecting carrier, so far as the requisite of notice in each case is concerned, we think exists, and should be recognized.

There having been in this case no notification to the steamship company, without which clauses 3 and 12 do not apply, and we being of the opinion that clause 11 has also no application without notification to the steamship company, it follows that the Reference was made in the opinion of the exemption claimed under the bill of lading court below, and also upon the argument in is not sustained; that the defendant at the this court, to the case of McKinney v. Jew-time of the fire was under obligation as a ett, 90 N. Y. 267, in relation to a delivery common carrier, and liable for the destrucof goods at the termination of the carriage, tion of the cotton, and that the judgment where the meaning of the phrase "awaiting in favor of the plaintiff below was right, delivery" was under consideration, the court and must be affirmed. holding that the phrase implied not only the arrival of the goods, but the completion of whatever on the part of the carrier is necessary to be done to leave the risk of further TEXAS & PACIFIC RAILWAY COM

delay upon the consignee; that the goods were "awaiting delivery" only after the duty of the common carrier is done, and he is entitled to remain passive awaiting the action of the consignee.

It was objected on the argument at the bar that the case was not in point because of the distinction between awaiting delivery and awaiting carriage, and it is urged

that this difference is substantial; that conveyance and delivery are different acts and relate to different parts of the service; that there could be no delivery to the consignee under the New York case until there had been notice in some form to the consignee, while the element of notice had no connection with the act of conveyance of the cotton, which might be entirely complete regardless of notice. The two cases differ in that the New York case, as counsel says, relates to a delivery at the end of the route, and the case at bar relates to goods awaiting conveyance by a connecting carrier; but in both the question arises as to the meaning of the term "await," and the New York case holds that goods do not await delivery within the meaning of that term as used in the bill of lading, until notice of their ar22 S. C.-17.

(183 U. S. 632)

PANY, Piff. in Err.,

v.

JOHN R. CALLENDER et al.

Carriers liability for loss of cotton by fire -construction of bill of lading-delivery to succeeding carrier.

1.

A carrier remains liable as at common law

for a loss of cotton by fire while in its possession, although it was "ready for delivery" to the next carrier, or was awaiting further conveyance within the meaning of clauses in the bill of lading modifying its common-law liability for the loss of goods under such circumstances, where such bill of lading also declares that "cotton is excepted from any clause herein on the subject of fire, and the carrier shall be liable as at common law for loss or damage of cotton by fire," since this specific clause takes effect to the exclusion of general clauses containing matters of general exemption.

2. A railroad company does not, by unloading

cotton on a pier under its sole and absolute control and possession and notifying a steam. ship company, the succeeding carrier, of its arrival, deliver the cotton "to the steamship company or on the steamship pier," within the meaning of a clause in the bill of lading

providing that its liability shall terminate | jury upon the question whether the cotton on such delivery, even assuming that such pler was the place agreed upon between the railroad and steamship companies to make delivery of cotton to be thereafter carried by the steamship company, where the railroad company still continues to retain full control of the cotton, and could, under certain contingencies, and at any time before delivery to the steamship, send the cotton by another steamer, and by agreement between the parties the steamship company was not to

time of its destruction, and also upon the was awaiting further conveyance at the question of whether the cotton had been de livered to the steamship company, and also upon the whole case. The request was refused. The clauses of the bill of lading to which reference is made are the following:

take the property until it sent a steamer to the pier for that purpose.

[No. 78.]

"1. No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by causes beyond its control; or for loss or damage to property of any kind at any place occurring by fire, or from any cause except the negligence of

Argued December 3, 1901. Decided Janu- the carrier." ary 13, 1902.

"3. No carrier shall be liable for loss or damage not occurring on its own road or its IN N ERROR to the Circuit Court of Ap-portion of the through route, nor after said peals for the Second Circuit to review a property is ready for delivery to the next judgment which affirmed a judgment of the carrier or to consignee. Circuit Court for the Southern District of New York entered upon a directed verdict in favor of plaintiff in an action to recover the value of cotton destroyed by fire. Affirmed.

See same case below, 39 C. C. A. 154, 98 Fed. 538.

The facts are stated in the opinion. Messrs. Arthur H. Masten and Rush Taggart for plaintiff in error.

Messrs. Treadwell Cleveland, George Richards, and Frederick E. Mygatt for defendants in error.

Mr. Justice Peckham delivered the opinion of the court:

This action was brought by the defendants in error, who are aliens, in the circuit court of the United States for the southern district of New York, to recover the value of 187 bales of cotton destroyed in the same fire at Westwego, Louisiana, November 12, 1894, mentioned in the immediately preceding case. As in that case, the defense here is based upon certain clauses of the bill of lading providing exemption from commonlaw liability in the contingencies mentioned. There was a verdict for the plaintiffs by the direction of the court, and the judgment entered thereon having been affirmed in the circuit court of appeals (39 C. C. A. 154, 98 Fed. 538), the railway company has brought the case here by writ of error.

"1.

Cotton is excepted from any clause herein on the subject of fire, and the carrier shall be liable as at common law for loss or damage of cotton by fire.

"11. No carrier shall be liable for delay, nor in any other respect than as warehouse men, while the said property awaits further conveyance, and in case the whole or any part of the property specified herein be prevented by any cause from going from said port in the first steamer of the ocean line above stated leaving after the arrival of such property at said port, the carrier hereunder then in possession is at liberty to for ward said property by succeeding steamer of said line, or, if deemed necessary, by any other steamer.

"12. This contract is executed and accomplished, and all liability hereunder terminates, on the delivery of the said property to the steamship, her master, agent, or serv ants, or to the steamship company, or on the steamship pier at the said port, and the inland freight charges shall be a first lien, due and payable by the steamship company."

The claim of the railway company is that the language of the 4th clause in the bill of lading, which excepts cotton from any clause therein on the subject of fire, and which renders the carrier liable as at com. mon law for loss or damage by fire, is lim

The facts as to the manner of doing busi-ited in its application to those clauses in ness at Westwego are the same as those stated in the foregoing case, and also in the Clayton Case, 173 U. S. 348, 43 L. ed. 725, 19 Sup. Ct. Rep. 421. The cotton arrived at Westwego between October 17 and 29, and had been so placed on the pier that it was only necessary for the steamship company to send a ship there and take the cotton when pointed out to its master or other officer. In this case there had been sent a notification to the steamship company, by means of the "transfer sheets" mentioned in the statement of facts in the other case, of the arrival of the cotton as early as No vember 2, for most of it, and for a few bales as late as November 10. After the evidence was in, the defendant requested to go to the

the bill of lading which speak of fire, and that the common-law liability of the company existing under the 4th clause is subject to the provisions of the other clauses mentioned in the bill, which provide for exemption or reduction of liability under the facts stated in them. In other words, that if the company might otherwise be liable for the loss of cotton by fire by reason of the 4th clause, yet, if at the time of the loss the property was ready for delivery, although not delivered, to the next carrier, as provid ed for in clause 3, or if it awaited further conveyance, though not actually delivered to the connecting carrier, as stated in clause 11, that then it would be exempted under the 3d or its liability reduced under the

.29.

11th clause of the bill of lading, and the plaintiff could not therefore recover, on the proof in this case. Of course if under the 12th clause the property had actually been delivered to the succeeding carrier, its destruction by fire thereafter would not render the preceding carrier liable for that loss.

The measure of the common-law liability between connecting carriers is stated in the opinion in the preceding case and the cases therein referred to, and need not be here repeated.

contained in the bill of lading, it is further provided that "the carrier shall be liable as at common law for loss or damage of cotton by fire." The whole is a special and specific provision which applies to cotton alone and to the loss of cotton by fire. The other provisions apply generally to all property, whatever its character and wherever taken. In other words, these other clauses are of a general nature, while the 4th clause refers to cotton alone, and to the specific cause of the loss, viz., by fire. We are of opinion that the specific clause takes effect to the exclusion of the general clauses containing

Now what is the true construction of the 4th clause? In relation to that it was stat-matters of general exemption, and that ed by Judge Shipman, in delivering the opinion of the circuit court of appeals herein, as follows:

"The principal question in the case is upon the proper construction of the sentence in clause 4 in relation to the liability of the defendant for loss of cotton by fire. The bill of lading was prepared for a contract in regard to property of any kind, and in clause 1 the carrier was exempted from liability from loss by fire except through his negligence. The part of the sentence in clause 4, 'Cotton is excepted from any clause herein on the subject of fire,' probably refers only to clauses wherein fire is mentioned; but the concluding part of the sentence, and the carrier shall be liable as at common law for loss or damage of cotton by fire,' has a wider sweep, and means that the carrier, notwithstanding limitations of its common-law liability which are provided in the bill of lading, retains such liability in regard to damage to cotton by fire. The clause as a hole intended to leave and did leave unaltered the implied liability of the carrier for loss to cotton by fire. The limitations which the parties did permit were contained in clauses 3 and 11, which said that the carrier should not be liable for damage after a readiness to deliver, or otherwise than as a warehouseman after the property waited further conveyance, Whatever may be the extent of these limitations, they were to a certain degree modifications of the common-law liability of the first carrier, but its liability at common law for loss to cotton by fire remained intact. The request of the defendant to go to the jury upon the question of delivery of the cotton was properly refused. There was no evidence of a delivery. The cotton was never in the actual or constructive possession of either of the steamship companies, and neither was ready to take it from the defendant's possession; and therefore clause 12 has no bearing upon the question of the defendant's liability.'

therefore the carrier remains liable as at common law for a loss of cotton by fire while in the possession of the carrier, although it was ready for delivery to the next carrier within the meaning of the 3d clause, or was awaiting further conveyance within the meaning of the 11th clause; but that if it had been actually delivered before the loss, the railway company would not have been responsible therefor. The defendant's claim, if allowed, would leave the shipper without recourse for loss by fire after the notification had been given to the steamship company and before the delivery of the cotton had been made to it, because the railway company would be under no liability for the loss of the cotton by fire, excepting by reason of its own negligence, and the insurance of the cotton, while in the possession of the steamship company, would not attach, and so the shipper would be without any adequate protection during that time. True, he might obtain special insurance during this intermediate period, but it would add to the expense of the transit which under the terms of the bill he would naturally not feel called upon to make, and it would be inconvenient and troublesome to do it, and the court ought not to unduly limit the plain language of the clause for the purpose of thereby enabling the company to escape a liability cast upon it by the common law, and which it voluntarily assumed.

As cotton was the subject of the special provision, its language should be given full sway, and should not be curtailed by other provisions in other clauses of a general nature referring to all kinds of property.

We are also of opinion that there was nothing to go to the jury upon the question of a delivery of this cotton to the steamship company under the 12th clause of the bill of lading. It may be assumed that the pier of the railway company was the place understood and agreed upon between that company and the steamship company to make delivery, when it was made, of the cotWe think this view of the circuit court ton to be thereafter carried by the steamof appeals is the correct one, and that under ship company; but upon the uncontradicted the wording of the 4th clause in the bill of evidence in this case we are of opinion that lading the defendant was properly held lia- the simple arrival of the cotton at the pier, ble. The first part of that clause in terms and notice thereof given to the steamship takes cotton out of any clause on the sub-company by means of the "transfer sheets" ject of fire, and as if such language might possibly render it doubtful as to what the status of cotton would be by merely except ing it from any clause on the subject of fire

spoken of in the other case, did not in and "of itself amount to a delivery of the cotton to the steamship company, constructive or otherwise. Nor was it a delivery on the

989.

steamship's pier, as between the shipper and the railway company, within the language of clause 12, and for the reasons herein stated the notice to the steamship company did not relieve the railway carrier from liability.

it or within reach of its tackle by the railway employees, depending upon where the cotton was, and how far away from the ship; and it was understood between the steamship and railway companies that the railway company would get out the cotton The uncontradicted evidence shows that when necessary to do it, and by getting out the cotton came to the railway pier under the cotton was meant dragging it from these circumstances: The pier was built where it was stored on the wharf out in by the railway company, and was in its sole front or near enough in front to enable the and absolute control and possession. Not a steamship people to get it without having bale of cotton could be taken from it with- to go around through the bales of cotton. out the action of that company; its own The connection of the steamship compawatchmen were in charge of the pier at all nies with the transportation of the cotton times, and when a steamship came to the was the subject of special contracts between pier it was only under a permit or an order those companies and the railway company. from an officer of the railway company that The initiation would be an agreement be the cotton was taken. It was pointed out tween a steamship company and the railway by the servants of the railway company, company for a certain charge for freight and, within the custom of the port of New across the ocean for a stated amount of cotOrleans, it had to be brought within the ton from New Orleans to Liverpool or Bre reach of the ship's tackle before the ship men, or whatever other foreign port it was called upon to take it. The expression might be, and no particular cotton was "ship's tackle" means "where the ship's specified. Having obtained this agreement ropes can get onto it so that the ship's as to price and number of bales, the railwinches can pull the cotton in." The cus-way company would then agree with the tom was that after a steamship company returned the transfer sheets which had been sent it by the railway company, an order was made out by the railway officials on the Westwego office of the defendant to deliver to the steamship company's agents such cotton as was ordered. It does not appear that any such order was given. Prior to the time of the arrival of the vessel which was to take the cotton and the arrival of the stevedores, the steamship company had no charge of any of the cotton on the pier. There was no particular spot on the pier at which, if cotton were there deposited, it was understood between defendant and the steamship companies to have been deposited in the care, control, or possession of any of such companies; but, on the contrary, the whole pier was covered by cotton destined indiscriminately for transportation to different European ports by different lines of steamers, not one of which could take a bale of cotton away without the order of the railway company.

Before the ship took the cotton it gave a mate's receipt for it, although sometimes the receipt would not come as soon as that, and the cotton would be delivered before the receipt was given. The cotton which came in on the cars of the defendant was placed all along the pier, and that which was destined for any particular company had to be pointed out and selected from a large mass of cotton on the pier. The railway company had contracts with various steamship companies;-with the West India & Pacific, the French line, the lines for which Miller & Company were agents, the Hamburg-American line, and some others;-and the cotton for all these various lines was unloaded upon this pier of the railway company, and was distributed all over the wharf, so that when a steamship came to the dock upon which the cotton was, that which was intended for the particular steamship then at the pier would be brought out to

shipper in Texas for a through rate from the point in Texas at which the cotton was to be taken to the port abroad, and it would then give a bill of lading such as was given in evidence in this case, providing for the through rate and the liabilities of the various carriers by rail and by sea; but it was only after an arrangement had been made and a contract entered into between the railway and a steamship company that the latter company would send a steamer to the Westwego pier. The evidence is uncontradicted in regard to what the steamship lines had to do under the agreements they had with the defendant; in some cases they were not under any obligation to come to the pier unless the defendant had at least 1,500 or 2,000 bales of cotton ready for them, while in another case the steamship company which had a contract to take 20,000 bales of cotton from the railway company was not to be called on to go to the wharf unless there were at least 500 bales ready to deliver to it, and by the bill of lading the railway company might, under certain contingencies, if it deemed necessary, forward the cotton by some steamer of another line than that mentioned in the bill. The steamship companies took their own time in coming to the Westwego pier for the cotton. If they had no special contract with the railway company, they did not come at all. It was not the case of a regular delivery by the railway company to a connecting carrier at the pier of the latter.

Now upon these facts we regard it as entirely clear that at the time this cotton was lost there had been no delivery, actual or constructive, to the steamship company, so as to devest the defendant of its common-law liability for the loss of this cotton.

Within clause 12 of this bill of lading there was no delivery of the property by the defendant, either to the steamship, her master, agents, or servants, or to the steamship company, or on the steamship com

689