1. Under a "uniform" interstate bill of lading providing that
property not removed by the party entitled to receive it within 48
hours after the notice of its arrival may be kept in car, depot, or
place of delivery of the carrier, subject to a reasonable charge
for storage and to the carrier's responsibility as warehouseman
only, or may, at the carrier's option, be stored in a public or
licensed warehouse at the
Page 256 U. S. 428
owner's cost and risk, subject to a lien for the carrier's
freight and other charge, the carrier remains liable
qua
carrier during the 48-hour period, pending delivery. P.
256 U. S.
430.
2. A carload of goods, upon arrival at destination, was placed
upon the railroad's public delivery track, and the consignee,
having been notified, accepted the car, broke the seals thereon,
and proceeded to unload.
Held that this did not constitute
a delivery of the goods, and that a loss of part, occurring during
the unloading and within the 48-hour period provided in the bill of
lading,
ut supra, par. 1, must be borne by the railroad.
P.
256 U. S.
431.
291 Ill. 149 affirmed.
Certiorari to review a judgment of the Supreme Court of Illinois
affirming a judgment for damages, rendered in favor of the present
respondent by the appellate court of that state upon an appeal from
a contrary judgment of the Municipal Court of Chicago. The facts
are stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
Action in the Municipal Court of Chicago for damages for loss on
several shipments of grapes, four car lots, shipped in sound and
merchantable condition.
On receipt of the shipments, bills of lading were issued. The
total loss is alleged to have been 126 baskets of grapes of the
value of $23.30. The municipal court found against plaintiff
(respondent here, and it will be so referred to). The judgment was
reversed by the Appellate Court, First District, of the state, and
judgment awarded respondent which was affirmed by the supreme court
of
Page 256 U. S. 429
the state, to which an appeal was granted because the court of
appeals considered that the case involved questions of importance
"on account of principal and collateral interests" which should be
passed upon by the supreme court.
Our review is concerned with questions of law; the facts are
undisputed. It is stipulated that the cars were transported by the
railroad company from their respective points of origin to Chicago,
arriving there at different days and times of the days. Upon the
arrival of each car, it was placed on a public delivery track of
the railroad company and notice thereof given. Respondent accepted
each car, breaking the seals thereof, and it is stipulated that, at
the time respondent started to unload, each of the cars contained
the number of baskets and pounds of grapes received for
transportation. The loss, whatever there was, occurred after the
acceptance of the cars and their unloading had commenced, and
whether the railroad company is liable therefor, and in what
capacity liable -- whether as carrier, or warehouseman, or at all
-- is the question in the case.
The answer depends upon the construction to be given to the
first paragraph of § 5 of the bill of lading. It is as follows:
"Property not removed by the party entitled to receive it within
48 hours, exclusive of legal holidays, after notice of its arrival
has been duly sent or given may be kept in car, depot, or place of
delivery of the carrier subject to a reasonable charge for storage
and to carrier's responsibility as warehouseman only, or may be, at
the option of the carrier, removed to and stored in a public or
licensed warehouse at the cost of the owner, and there held at
owner's risk and without liability on the part of the carrier and
subject to a lien for all freight and stored in a public or
licensed warehouse at the charge for storage. "
Page 256 U. S. 430
Regarding the words of the section merely, they are clear
enough, and present no "double sense." But controversies have
arisen, and judicial judgments have divided upon them. The point of
the controversies has been, and is, as to the relation of the
carrier to a shipment within 48 hours after notice of its arrival
has been duly sent or given, and the contentions upon the point are
in sharp antagonism. That of respondent is that the railroad
company, during the 48 hours, is responsible as a carrier, this
relation not terminating until the expiration of that time. The
contention of the railroad company is
contra, and that it,
the company, is neither liable as a carrier or warehouseman. Not as
carrier because the shipment had been delivered and accepted; not
as warehouseman because no negligence has been proved against it.
The supreme court decided against the contentions of the railroad
company, and held it liable for loss on all of the shipments. As to
three of them, we may say immediately, in disposition of them,
respondent withdraws any claim on account of them, and confines the
issue to one car which was undoubtedly unloaded within 48 hours of
the notice of its arrival. There is question of the other cars.
The importance of the issue, however, still remains, although it
is concerned with only 31 baskets of grapes, of the value of $8.68,
and the difficulty of its determination is indicated by the fact of
the diversity of judicial reasoning upon a like issue in other
cases. And counsel have been at pains to set the cases in
opposition, with approving or disapproving comment of their
own.
The differences of the cases cannot be reconciled, and a review
of them for the purpose of selection would manifestly extend this
opinion to a great length. Their outside principle is simple enough
-- the bill of lading is a contract between the transportation
company and him who is interested in the shipment, and legal
when
Page 256 U. S. 431
within the policy and edicts of the law regulating that
relation.
*
By recurring to § 5 of the bill of lading, it will be seen that
it supposes a contingency and provides for its occurrence. It
supposes that property may not be removed when it has reached
destination, and is available for delivery, and two periods of time
are provided for. One of 48 hours after notice of the arrival of
the property has been sent or given. During this time, there is no
declaration of the relation of the railroad company to the
property. The other period commences at the expiration of the first
or 48-hour period, during which the provision is that the property
is subject "to carrier's responsibility as warehouseman only." The
comparison has its significance, and must be accounted for.
Realizing this, the railroad company makes a distinction. Its
contention is that, where delivery has been made of the property,
as it insists was true in the case at bar, the responsibility of
the railroad company as carrier immediately ceases. If, however, it
is neither delivered nor removed within 48 hours after notice of
its arrival, the responsibility of the railroad company thereafter
is that of "warehouseman only."
To the distinction and the contention based upon it, the supreme
court of the state answered that the bill of lading provides for
property "not removed" -- not to property "delivered" or "not
delivered," and it must be taken at its word.
The answer puts too much emphasis upon the distinction between
property removed and property delivered.
Page 256 U. S. 432
The property here was not delivered; access was only given to it
that it might be removed, and 48 hours were given for the purpose.
Pending that time, it was within the custody of the railroad
company, the company having the same relation to it that the
company acquired by its receipt and had during its
transportation.
The bill of lading is definite, as we have pointed out, in its
provisions and of the time at which responsibility of the company
shall be that of warehouseman, and by necessary implication,
therefore, until that responsibility attaches, that of carrier
exists.
All the elements of the case considered and assigned their
persuasive force, we think the judgment of the supreme court should
be, and it is,
Affirmed.
*
Texas & Pacific Ry. Co. v. Reiss, 183 U.
S. 621;
Kansas City Southern Ry. Co. v. Carl,
227 U. S. 639;
Georgia, Florida & Alabama Ry. Co. v. Blish Milling
Co., 241 U. S. 190;
St. Louis, Iron Mountain & Southern Ry. Co. v.
Starbird, 243 U. S. 592;
Missouri, Kansas & Texas Ry. Co. v. Ward, 244 U.
S. 383;
Southern Ry. Co. v. Prescott,
240 U. S. 632;
Erie R. Co. v. Shuart & Sons, 250 U.
S. 465.
MR. JUSTICE McREYNOLDS dissenting.
This cause is important because of what had been said concerning
§ 5 of the Uniform Bill of Lading approved and recommended by the
Interstate Commerce Commission after much consideration and
repeated conferences between carriers and shippers, extending
through four years.
In their report, 14 I.C.C. (1908) 346, 348, 349, 350, the
Commission said:
"This proposed bill of lading -- for the two forms may be
considered as one in what we have further to say -- is submitted
for adoption by the carriers and use by the shipping public with
considerable confidence. It is not claimed to be perfect, and
experience may develop the need of further modifications, but it
represents the most intelligent and exhaustive efforts of those who
undertook its preparation to agree upon a bill of lading which
should be reasonably satisfactory to the railroads and the public.
It is, of course, more or less a compromise between opposing
Page 256 U. S. 433
interests, because, on the one hand, it imposes obligations of
an important character which carriers have not heretofore assumed,
and, on the other, retains exemptions to which some shippers may
object, and perhaps not without substantial reason. As we are
advised, it is in some respects less favorable to the shipper than
the local laws or regulations of one or more states, but is more
favorable to the shipper than the local laws or regulations of most
of the states. On the whole, it is believed to be the best
adjustment which is now practicable of a controversy of
longstanding which affects the business interests of the entire
country. . . . The circumstances under which the work of the joint
committee has been conducted and the substantial agreement on most
points by the different interests concerned, to say nothing of
direct assurances from representatives of the carriers, warrant us
in expecting that the assenting roads will adopt the bill upon our
recommendation. We therefore assume that the railroads in Official
Classification territory, whose proposed action was the subject of
the original investigation, will adopt and use this bill, to the
extent above indicated, from and after the date named for that
purpose. We shall also expect that railroad carriers subject to the
act outside of Official Classification territory will adopt and use
this bill of lading to the same extent and from and after the same
date. There may be peculiar conditions in Western and Southern
territory which require some modifications of or additions to this
standard bill, but the desirability of uniform usage is so great
and the reasons for it so obvious as to justify the expectation
that carriers in Western and Southern territory will adopt the bill
in question to the fullest extent practicable without abridging any
just privileges which their shippers now enjoy."
The language in controversy was not selected by the carriers
alone; they reluctantly accepted the whole instrument
Page 256 U. S. 434
rather than dictated it to others.
Texas & Pacific Ry.
v. Reiss, 183 U. S. 621,
holding that doubtful provisions should be resolved in the
shipper's favor, is not applicable. The agreement ought to be
construed and applied as one arrived at through deliberate
negotiation by intelligent parties seeking to make some definite
statement or modification of common law rules concerning their
rights and liabilities.
The carrier acknowledges receipt of
"the property described . . . marked, consigned and destined as
indicated below, which said carrier (which word is to be understood
throughout this bill of lading as meaning any person or corporation
in possession of the property under the bill of lading) agrees to
carry to its usual place of delivery at said destination, if on its
road, otherwise to deliver to another carrier on the route to said
destination."
Among other things, section 1 provides:
"The carrier or party in possession of any of the property
herein described shall be liable for any loss thereof or damage
thereto, except as hereinafter provided. . . . When, in accordance
with general custom, on account of the nature of the property, or
when at the request of the shipper, the property is transported in
open cars, the carrier or party in possession (except in case of
loss or damage by fire, in which case the liability shall be the
same as though the property had been carried in closed cars) shall
be liable only for negligence, and the burden to prove freedom from
such negligence shall be on the carrier or party in
possession."
Section 5 follows:
"Property not removed by the party entitled to receive it within
forty-eight hours (exclusive of legal holidays) after notice of its
arrival has been duly sent or given may be kept in car, depot, or
place of delivery of the carrier, or warehouse, subject to a
reasonable charge for storage and to carrier's responsibility as
warehouseman only, or
Page 256 U. S. 435
may be, at the option of the carrier, removed to and stored in a
public or licensed warehouse at the cost of the owner, and there
held at the owner's risk and without liability on the part of the
carrier, and subject to a lien for all freight and other lawful
charges, including a reasonable charge for storage."
The Uniform Bill does not purport to specify all rights and
obligations of the parties as between themselves, but leaves these
as established by law except when and as otherwise provided.
Particularly, it does not undertake to define what shall constitute
delivery to the consignee.
"In order to simplify the issues, the respondent" confines its
claim here to losses from car No. 22049-$8.68. The parties
stipulated that this car
"arrived in Chicago on October 8, 1914, was placed on a public
delivery team track on October 9, 1914 at 8 a.m. o'clock; that
notice of arrival and placement of said car was given to the
plaintiff herein on October 9, 1914, at 9 a.m. o'clock; that
plaintiff accepted said car, broke the seals thereon, and started
to unload it on October 9, 1914, at 9:30 a.m. o'clock, and that the
unloading of said car was completed by the plaintiff on October 9,
1914, at 6 p.m. o'clock. . . . That, at the time the plaintiff
accepted and started to unload each of said cars, every car
contained the same number of baskets and pounds of grapes as were
received by the defendant in said car for transportation at the
point of origin thereof, named herein, and that at said time the
doors of each of said cars were sealed with the same seals intact
as were placed on them by the defendant when it received said
grapes for transportation."
The circumstances accompanying acceptance and unloading are not
revealed except as above stated. Whether these suffice clearly to
establish final and complete delivery of possession of the freight
to the consignee may be questioned, but mere consideration of the
bill cannot
Page 256 U. S. 436
solve the difficulty. If, as matter of fact, the consignee was
put into actual possession of the property within 48 hours, it must
be clear that the carrier's liability as insurer ceased when he
accepted control.
What constitutes delivery by a railroad carrier sufficient to
change its responsibility from insurer to warehouseman has given
occasion for much difference of opinion.
The so-called New York rule, the strictest against the
carrier,
"is stated to be that, if the consignee is present upon the
arrival of the goods, he must take them without unreasonable delay;
if he is not present, but lives at or in the immediate vicinity of
the place of delivery, the carrier must notify him of the arrival
of the goods, and then he must have a reasonable time to remove
them; if he is absent, unknown, or cannot be found, the carrier may
store them, and if, after notice of the arrival of the goods, the
consignee has had a reasonable opportunity to remove them, and does
not, he cannot hold the carrier longer as an insurer."
Hutchinson on Carriers (3d ed.) § 708.
The Massachusetts rule has been thus stated:
"All that could be required of railways was a safe deposit of
the goods upon the platform or in the warehouse of the road at the
end of the transit, to await delivery to the consignee, when he
should call for them, and that from the time of such deposit, even
without notice by the carrier to the consignee, the liability of
the former was changed from that of common carrier to
warehouseman." Hutchinson on Carriers, 3d ed., § 702.
The New Hampshire rule continues the carrier's liability as
insurer until the consignee has had a reasonable time to receive
the goods after their arrival at destination. During that
period,
"the servants of the carrier still continue in charge of them.
They are equally shut off from observation and the oversight of
others as when in transit, and if they are lost, damaged, or
purloined, he
Page 256 U. S. 437
has no greater opportunity of ascertaining or proving by whose
fault or negligence it was done than if such loss had occurred
during the transportation. Consequently, the same reasons for
holding the carrier to extraordinary responsibility during the
transportation of the goods exist after their arrival, at least
until the owner or consignee shall have had an opportunity to take
them in charge."
Hutchinson on Carriers, 3d ed., § 704.
Undoubtedly the Uniform Bill was prepared with the above rules
in mind. It did not adopt any of them, but left the matter to which
they relate for determination by the courts.
It should be noted that the bill acknowledged receipt of
property
"which said carrier . . . agrees to carry to its usual place of
delivery at said destination, if on its road, otherwise to deliver
to another carrier on the route to said destination,"
and further, that
"the carrier or party in possession of any of the property
herein described shall be liable for any loss thereof or damage
thereto, except as hereinafter provided."
The special purpose of § 5 was to protect the carrier by placing
an extreme limit upon the time during which freight might remain
with it without charge for storage, and also to define the
carrier's right and obligation thereafter. The unnecessary delay
incident to unloading and the undue utilization of railroad cars
and warehouses by consignees for storage purposes had seriously
hindered prompt movement of freight and proper employment of
equipment. This section does not purport to establish any rule of
liability during the 48 hours, but leaves that to be determined by
application of the common law to the circumstances. To say that a
carrier insures for 48 hours although the consignee has taken
actual custody of the goods would seem an absurd conclusion. And
the practical impossibility of stationing an agent at every car
within
Page 256 U. S. 438
a great terminal while freight is being removed by thousands of
consignees and their agents -- a necessary precaution of thefts or
mistakes by any one of them must be prevented -- makes it manifest
that the Interstate Commerce Commission would not have sanctioned
the responsibility now claimed, and that the carriers would not
have acquiesced. I cannot think there was purpose to burden
carriers beyond the most stringent of the rules above referred
to.
The fair inference from the facts stipulated is that the
consignee received possession and control of his goods before the
loss occurred. A carrier's responsibility as insurer depends upon
exclusive possession and control, and must cease when these end.
The modified one prescribed by the Uniform Bill for goods shipped
in open cars where such possession and control is difficult or
impossible to maintain gives practical recognition to the real
basis upon which liability rests. Here, the car was opened,
examined, accepted, and apparently thereafter remained in charge of
the consignee. Yet, it is said the delivery was not sufficient to
terminate liability as insurer, but that this continued because of
§ 5, which in plain terms refers only to removal. It must not be
forgotten that we are not dealing here with a question of due care,
but with the absolute liability of an insurer.
It is not good reasoning to conclude that, because an extreme
limit is placed upon the time during which freight may remain in a
car without charge, therefore the carrier's liability as an insurer
continues during such time.
The Uniform Bill is in common use, and the opinion of the Court
will be far-reaching. The subject therefore seems sufficiently
important to demand an indication of the reasons which lead me to
dissent.