Constable v. National Steamship Co.
154 U.S. 51 (1894)

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U.S. Supreme Court

Constable v. National Steamship Co., 154 U.S. 51 (1894)

Constable v. National Steamship Company

No. 21

Argued April 8-9, 1894

Decided May 26, 1894

154 U.S. 51

Syllabus

In the bill of lading of a quantity of cases and bales of goods delivered to the National Steamship Company at Liverpool, and addressed and consigned to C. in New York, it was provided as follows:

"Shipped in good order and well conditioned . . . in and upon the steamship called the Egypt . . . bound for New York . . . forty-three cases merchandise . . . being marked and numbered as in the margin, and to be delivered subject to the following exceptions and conditions: . . . The National Steamship Company or its agents or any of its servants are not to be liable for any damage to any goods which is capable of being covered by insurance . . . nor for any claims for loss . . . where the loss occurs while the goods are not actually in the possession of the company. . . . The goods to be taken alongside by the consignee immediately the vessel is ready to discharge, or otherwise they will be landed by the master and deposited at the expense of the consignee, and at his risk of fire, loss, or injury in the warehouse provided for that purpose, or in the public store, as the collector of the port of New York shall direct. . . . The United States Treasury having given permission for goods to remain forty-eight hours on wharf

Page 154 U. S. 52

at New York, any goods so left by consignee will be at his or their risk of fire, loss, or injury."

The Egypt arrived January 31, 1883, was entered at the customhouse at 1:45 p.m. of that day, and, there being no room for her at the pier of the National Company, where the vessels of that company were usually unladen, was taken to the pier of the Inman Company. A collector's permit was given to unload the steamer and to allow the unpermitted cargo to remain on the wharf for forty-eight hours, upon an agreement by the steamship company, which was given, that the goods should be at the sole risk of that company, who would pay to the consignee or owner the value of such cargo respectively as might be stolen, burned, or otherwise lost. Notice of the time and place of the discharge was then posted upon the bulletin board of the customhouse, in accordance with custom, but no notice was sent to C., nor did he have any notice. The cases and bales consigned to him were on the same day landed on the Inman pier, but he had no knowledge of it, and had no opportunity to remove the goods on that day, and, if he had had such knowledge, there was not sufficient time for him to have entered, paid the duties, obtained the permits for their removal, and removed them. On the night of that day, the goods were destroyed by fire, without any imputed negligence to the National Steamship Company.

Held:

(1) That the stipulation in the bill of lading that respondent should not be liable for a fire happening after unloading the cargo was reasonable and valid.

(2) That the discharge of the cargo at the Inman pier was not in the eye of the law a deviation such as to render the carrier an insurer of the goods so unladen.

(3) That if any notice of such unloading was required at all, the bulletin posted in the customhouse was sufficient under the practice and usages of the port of New York.

(4) That libellants, having taken no steps upon the faith of the cargo's being unladen at respondent's pier, were not prejudiced by the change.

(5) That the agreement of the respondent with the collector of customs to pay the consignee the value of the goods was not one of which the libellants could avail themselves as adding to the obligations of their contract with respondent.

This was a libel in admiralty by the firm of Arnold, Constable & Co. against the National Steamship Company, owner of the British steamship Egypt, to recover the value of thirty-six cases of merchandise carried by this steamer from Liverpool to New York, delivered on the pier of the Inman Steamship Company on January 31, 1883, and upon the same night destroyed by fire through the alleged negligence of the respondent. The answer admitted most of the material

Page 154 U. S. 53

allegations of the libel, but denied all charges of negligence, and also of liability for the loss of the merchandise. Upon a hearing upon pleadings and proofs in the district court, the libel was dismissed (29 F. 184), and, upon appeal to the circuit court, the decree was affirmed. Libellants thereupon appealed to this Court.

The following is an abstract of the facts found by the circuit court, so far as the same are material to the questions involved:

"2. The Egypt was one of a line of steamers owned by the respondent, and plying regularly between Liverpool and New York as common carriers. The steamers of this line arrived as often as from three to eight times per month."

"3. Respondent has run a line of such steamers for over twenty years, and during that time has docked them at a dozen different piers in the City of New York. From 1872 to 1878, it leased the pier No. 36 (old No. 44), North River, and usually docked its vessels there. Subsequently it leased pier No. 39, North River, about six hundred feet north of pier No. 36, and has since usually docked its vessels there, and not elsewhere. The piers between Nos. 35 and 41, North River (excluding pier No. 37) were, in 1883, all used by regular English steamship lines. These lines usually dock at their own piers, but not always, and in case of any emergency, dock elsewhere and permit each other, when the necessity arises, to use the exclusive dock of each."

"4. That said goods were shipped at the port of Liverpool on board the Egypt, and were consigned to the libellants at New York under a bill of lading, the material portions of which are cited in the opinion. (A copy is also given in the margin.*) The Egypt also carried as a considerable portion

Page 154 U. S. 54

of her cargo goods shipped by the Inman Company, which had given respondent the option of discharging at its pier, No. 36. "

Page 154 U. S. 55

"5. The Egypt arrived on January 31, 1883, and was entered at the customhouse at 1:45 o'clock in the afternoon. "

Page 154 U. S. 56

"7. For a month or more, respondent had been blocked at its own pier, No. 39, in consequence of heavy cargoes, delays of its vessels by westerly winds and ice in the slips, and had been obliged in consequence to discharge two of its vessels at outside uncovered piers."

"8. Respondent's manager had arranged to send the Holland, another ship of respondent's line, and due before the Egypt, to its own pier, No. 39, and to send the Egypt to the Inman pier, No. 36. This arrangement was carried out, the Holland sent to No. 39, and the Egypt to No. 36, there being no room for her at No. 39."

"9. Steamers of regular lines, on their arrival at New York, if their docks are blocked, are not kept in the stream longer than to enable them to get berthed elsewhere. If kept in the stream, the consignees make great complaint. It was more costly to dock the Egypt at No. 36, but this was done to secure to the consignees a more prompt discharge and delivery of their goods."

"10. That the Egypt began at about 4:30 o'clock in the evening of said 31st of January, 1883, to discharge her cargo upon the dock, and the thirty-six cases of merchandise belonging to the libellants were landed and discharged there prior to the fire. "

Page 154 U. S. 57

"11. Upon the entry at the customhouse of the Egypt, there was granted by the collector of customs a general order to unload the steamer and to send packages to the public store. An application was also immediately made to the collector to allow the unpermitted cargo to remain upon the wharf for forty-eight hours from the time of the granting of the general order. This application was in the following form:"

" To W. H. Robertson, Esq., Collector of Customs."

" Request is hereby made to allow the cargo of the steamer Egypt, Summer, from Liverpool, England, unladen, but not permitted to remain upon the wharf for forty-eight hours from the time of granting general order at the sole risk of the owners of said steamer, who will pay to the consignee or owner the value of the such cargo, respectively, as may be stolen, burned, or otherwise lost, and who will also pay all duties which may be in any way lost by so remaining."

"F. J. W. Hurst, Owner"

"Per J. C. Ryor, Attorney"

"Such application was in the form required by the collector, without which permit would not be granted, and the entire cargo would be sent to public store. A permit was granted by the collector upon this application. A special license was also granted to unload the steamship after sunset, and a bond in $20,000 was given for such license, as required by law."

"12. The general order above stated, the special license, the applications and permits, and the agreements and engagements therein contained were the usual and customary ones ordinarily made and granted in such cases, and were made under and by the authority in the bill of lading conferred upon the respondent and upon the collector of the port, and in accordance with the provisions of law and the regulations of the Treasury Department in that behalf."

"14. Under these several orders and permits, a portion of the cargo of the Egypt, including libellants' merchandise, was discharged and landed upon the Inman dock, where the same was destroyed by fire about two o'clock the next morning. That said cargo, including said merchandise belonging to

Page 154 U. S. 58

libellants, was at the time of its destruction aforesaid in the possession of the respondent, and had never been taken into the possession of the collector of the said port of New York. That said fire broke out without any imputed negligence, and that by it the steamer was also somewhat burned."

"15. That between the arrival of the steamer and the destruction of the merchandise, there was not sufficient time in which to enter libellants' goods at the customhouse, pay the duties thereon, and obtain the requisite permits for the removal of the same. That in fact no duties were paid upon libellants' goods, and no permits obtained prior to the destruction of the goods by fire. That said goods were at the time of their destruction 'unpermitted' goods."

"16. That upon obtaining the permits referred to, the respondent's customhouse broker caused a notice of the time and place of discharge to be posted on the bulletin board of the customhouse. It is usual to so post such notices. It is not usual to publish them in the newspapers."

"17. No notice was ever sent to or received by the libellants, nor did they have any actual knowledge of the readiness to discharge or of the time or place of discharge of the Egypt upon her arrival."

"18. Libellants never knew that the merchandise had been landed and deposited upon the Inman dock, and never had an opportunity of removing such merchandise."

The other facts, so far as they are material, are stated in the opinion of the Court.

Upon such facts, the circuit court found as conclusions of law that respondent had the right to dock and discharge the Egypt at the Inman pier, that it was exempt from liability for the goods destroyed by fire on such pier, and that there was, by reason of the application to the collector to allow the unpermitted cargo to remain on the wharf, no valid agreement or binding obligation to pay the libellants the value of the goods burned.

Page 154 U. S. 59

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