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conceded, there was never any notification given the steamship company of the arrival of this cotton. Without that notification counsel does not contend that either of those clauses applies. The argument at the bar was devoted to maintaining the proposition that the railway company was exempted under clause 11, and the other clauses in the bill of lading were referred to for the purpose of giving point to that contention. It was urged at the bar that under the 11th clause the question of notification was immaterial, because, although a notification had not been given, yet the cotton, upon its arrival at the pier and after it had been unloaded from the cars, “awaited further conveyance,” within the meaning of the 11th clause, and while awaiting further conveyance the carrier was by the express terms of that clause relieved from liability otherwise than as warehouseman. In other words, that the carrier upon the arrival of the cotton and unloading it at the pier, and without giving any notification of its arrival, 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. It was argued that clauses 3 and 12 were intended to cover such a case as would have existed in the one now before us had notice been given to the steamship company of the arrival of the cotton at Westwego, such notice being understood by the steamship company as a request to come and take away the cotton; and in holding, as the court below did, that notification was necessary before the 11th clause could apply, that clause was thereby deprived of any separate effect, because after notification the 3d or the 12th clause would exempt the carrier, and therefore some further or other meaning must be given the 11th clause, so that #. may operate in a case where no other clause would be available. Upon this subject Circuit Judge Shipman, in the court below, said: * “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 before any notification of their arrival to the connecting carrier. McKinney v. Jewett, 00 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 conveyance. By this construction the parties substituted an immediate cessation of the liability of a carrier, and the assumption of the liability of a warehouseman for the liability imposed by the common law; and doubtless they were at liberty to make a contract of limitation which will be enforced if the language of the bill of lading clearly
indicates that such was their intention. In order to justify the defendant's construction, the claimed extent of the departure from the implied contract of the common law must clearly appear in the language which is used in the special contract. The clause “no carrier shall be liable for delay,” when applied to the facts in this case, meant that the defendant should not be liable for the delay of the steamship company, but delay would not occur until it knew or had heard of the time of arrival of the cotton. The same idea of notification to the connecting line must also run through the entire paragraph, and, while the term “awaiting further conveyance' literally means “awaiting the time when the next carrier shall take the property in hand,’ it seems improbable that it was the intent of the language that the liability of the carrier should terminate upon the deposit of the property upon the wharf. The language is too indefinite to support the conclusion that notice to the connecting line was not a prerequisite 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 receive and convey, but until then it is nota awaiting conveyance; it is awaiting the ac-> tion of the first “carrier. The term must *. mean awaiting conveyance by the person upon whom the duty of conveyance devolved, and no such duty devolved until notice of the arrival of the property had been given.” We agree with the views of the court below, as expressed by Judge Shipman. We do not think that the property can be said to await further conveyance the moment it is dragged upon the pier of the railway company and unloaded from its cars, and before 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 company, 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. We are then to look for some fair and reasonable meaning to be given to the term, and we think that the court below has given such meaning to it. It cannot reasonably be said that within the meaning of that clause the property awaits further conveyance the moment it has been unloaded from the cars onto the pier of the defendant. As is stated by the circuit court, at that time
the property awaits the further action of the defendant, and does not await further conveyance until it has become the duty of the succeeding carrier to take it further, after notification that it has arrived and awaits delivery to it. After that time it may be said to await further conveyance, but up to that time it awaits the further action of the railway company. This meaning of the clause is not altered 3 even if the language used in other clauses Śmight also grant exemption upon the same * facts. We are not for that reason bound to find some other and different meaning for the 11th clause than such as we think is obvious and plain upon its face. The various propositions mentioned in these different clauses and the many contingencies provided for therein under which the company might claim exemption render it not surprising 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 poided for in another clause of the same
Reference was made in the opinion of the court below, and also upon the argument in this court, to the case of McKinney v. Jewett, 90 N. Y. 267, in relation to a delivery of goods at the termination of the carriage, where the meaning of the phrase “awaiting delivery” was under consideration, the court 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 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 delivand 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 redless 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 awaitRing conveyance by a connecting carrier; but 3 in both the question arises as to the mean• ing of the term “await,” and the New York case holds that s 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.
rival has been given the consignee; and it seems to us that the same reasoning holds here, and that goods are not awaiting further conveyance by a connecting carrier until the preceding carrier has given him notice of their existence at the place where further conveyance is to be continued. We do not dispute that there is a distinction between the position of goods awaiting delivery and those awaiting further conveyance; and the fact of such distinction is recognized in Michigan C. R. Co. v. Mineral Springs Mfg. Co. 16 Wall. 318, 327, 21 L. ed. 297, 302, and it is therein stated that there is a clear distinction between property in a state to be delivered free to the consignee on demand and property on its way to a distant point to be taken thence by a connecting carrier. In the former case it might be said to be awaiting delivery; in 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 l l has also no application without notification to the steamship company, it follows that the exemption claimed under the bill of lading is not sustained; that the defendant at the time of the fire was under obligation as a common carrier, and liable for the destruction of the cotton, and that the judgment in favor of the plaintiff below was right, and must be affirmed.
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 steamship company, the succeeding carrier, of its arrival, deliver the cotton “to the steamship company or on the steamship pler," within the meaning of a clause in the bill of lading
law liability in the contingencies mentioned. |p
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. The facts as to the manner of doing business 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 3 was only necessary for the steamship com$pany to send a ship there and take the cot* ton 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 November 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
jury, upon the question whether the cotton was awaiti lo. conveyance at the time of its "ß. and also upon the question of whether the cotton had been delivered 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:
“l. 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 the carrier.”
“3. No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee. . . .”
“4. Cotton is excepted from any clause herein on the subject of fire, and the carrier shall be liable as at common law for los or damage of cotton by fire.
“11. No carrier shall be liable for delay, nor in any other respect than as warehousemen, 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 forward, 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 servants, 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 É. the steamship com-o. any.” *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 common law for loss or damage by fire, is limited in its application to those clauses in 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 provided 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
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 reni. the preceding carrier liable for that Oss. 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. Now what is the true construction of the 4th clause? In relation to that it was stated 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 menetioned; but the concluding part of the sen§ tence, ‘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 y, 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 ll, 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.” We think this view of the circuit court of appeals is the correct one, and that under the wording of the 4th clause in the bill of lading the defendant was properly held liable. The first part of that clause in terms takes cotton out of any clause on the subject of fire, and as if such language might possibly render it doubtful as to what the status of cotton would be by merely excepting it from any clause on the subject of fire
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 containings matters of general exemption, and that 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 durin this intermediate period, but it would j 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 cotton to be thereafter carried by the steamship company; but upon the uncontradicted evidence in this case we are of opinion that the simple arrival of the cotton at the pier, and notice thereof given to the steamship company by means of the “transfer sheets”gn spoken of in the other case, did not in and 3 "of itself amount to a delivery of the cotton”
to the steamship company, constructive or otherwise. Nor was it a delivery on the
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. The uncontradicted evidence shows that the cotton came to the railway pier under these circumstances: The pier was built by the railway company, and was in its sole and absolute control and possession. Not a bale of cotton could be taken from it without the action of that company; its own watchmen were in charge of the pier at all times, and when a steamship came to the ier it was only under a permit or an order rom an officer of the railway company that the cotton was taken. It was pointed out by the servants of the railway company, and, within the custom of the port of New Orleans, it had to be brought within the reach of the ship's tackle before the ship was called upon to take it. The expression “ship's tackle” means “where the ship's ropes can get onto it so that, the ship's winches can pull the cotton in.” The custom 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
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 when necessary to do it, and by getting out the cotton was meant dragging it from where it was stored on the wharf out in front or near enough in front to enable the steamship people to get it without having to go around through the bales of cotton. The connection of the steamship companies with the transportation of the cotton was the subject of special contracts between those companies and the railway company. The initiation would be an agreement between a steamship company and the railway company for a certain charge for freight across the ocean for a stated amount of cotton from New Orleans to Liverpool or Bremen, or whatever other foreign port it might be, and no particular cotton was specified. Having obtained this agreement as to price and number of bales, the railway company would then agree with the 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 s and a contract entered into between the rail- to way and a "steamship company that the lat- * ter 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