Price v. Hartshorn

By the Court, Bockes, J. This is an appeal from a judgment in favor of the plaintiff, entered on the report of a referee. The action was by a common carrier, to recover freight for transporting a boat load of barley from St. Johns, Canada Bast, to New York. The defense was that the plaintiff failed to deliver .to the consignee at New York the full amount of barley received by him at St. Johns. Of the barley received by the plaintiff for transportation, at St Johns, and while era route through Lake Champlain, he was compelled, by stress of weather, to throw overboard 1243/? bushels in order to save the vessel and balance of the cargo from destruction. The loss, therefore, for which the defendant claimed to be allowed resulted from the extreme violence of the storm, and must be deemed providential— the act of God. It has been well settled for many years that a common carrier, according to his common law liability, is an insurer of the property received by him for transportation, against all loss and damage happening thereto while under his control, unless occasioned by the act of God or the public enemy. With this exception the common carrier warrants [666] the safe delivery of the property entrusted to him against all contingencies. (Story on Bailment, §§ 489, 490. Edwards on Bailment, 454. 2 Kent, 602. 1 T. R. 27. 10 John. 1. 6 id. 160. 11 id. 107. 21 Wend. 190. 26 id. 591. 2 Barb. 326. 10 id. 612. 31 id. 38. 39 id. 488. 42 id. 230. 10 N. Y. Rep. 431. 11 id. 485. 25 id. 442-445.) Great storms are beyond the control of human agency, and loss and damage occasioned thereby are excused as the act of God. In this case the plaintiff, according to tlie evidence and the finding of the referee, was free from fault, and acted under an inevitable necessity in destroying a portion of the cargo. He was not, therefore, responsible for the loss, according to the rules of the common law applicable to common earners, in the absence of a special contract, incurring his general liability. The ordinary common law liability of a common earner may be limited or qualified by special agreement. This principle is now well settled in this state. (11 N. Y. Rep. 485. 24 id. 181. 25 id. 442. 43 Barb. 102.) These decisions are to the effect that a common carrier of goods may, by express contract, exempt himself from all liability, except perhaps in case of his own fraud or willful act. (8 N. Y. Rep. 375.) ' So, doubtless, he may by express contract assume and take upon himself all perils of navigation, including those attendant upon storms and tempests. In such case he would become by his agreement an insurer of the property against these perils. There would be nothing contrary to public policy, or in any respect illegal, in such a contract. By the bills of lading in this case, signed by the plaintiff, he was to deliver the property at the place of destination without delay—damage or deficiency in quantity specified, if any, to be- deducted from charges by consignee. It is insisted on the part of the defendant, that by force of this contract the plaintiff was bound to deliver the property in the same condition as when received by him, without diminution. In other words, that the plaintiff thereby became the insurer of the property while under his control, [667] against all possible contingencies. This is a mistaken view, unless he assumed by this contract a greater liabilityx than that imposed by the common law in the absence of an express contract. The question is, then, did the plaintiff by this contract increase his ordinary common law liability as a common carrier ? He agreed to deliver the property, without delay at its place of destination. Such is the ordinary obligation of a common carrier on receiving property for transportation. It is the entire contract on his part briefly stated. This he is bound to perform according to its fair, true and legal import; and he is bound to perform by an actual delivery of all the property except in so far as the law excuses nonperformance. The law, however, excuses a failure to deliver in case delivery be rendered impossible by the act of God. The general words of a contract or obligation, in the absence of express stipulation to the contrary, are always to be taken subject to such qualification. (8 Cowen, 297. 12 Wend. 589. 19 id. 341. 24 Barb. 124. 20 N. Y. Rep. 197, 211. 3 Hill. 570.) The language here employed is general, and the contract is such as would have been implied by law without a written agreement. The obligation of the plaintiff as common carrier required him to deliver the property at the place of destination without delay, and reducing the contract to writing did not increase his obligation; and that which would excuse a non-delivery in "the one case would be a good excuse in the other. ' True, it was j>°vided that any damage or deficiency in quantity should be deducted from the freight. But the damages and deficiency here contenplated were such as might by law be properly chargeable to the plaintiff in case of his neglect or failure to perform his obligation as a common carrier. If other obligations were intended to be imposed, language more direct and precise should have been employed, "showing a clear purpose to add to his ordinary liability. (33 Barb. 241. 7 Hill, 533. 6 John. 171, 180.) I am clearly of the opinion that the contract in this case imposed no greater obligation on the [668] plaintiff than he would have incurred as common carrier without it. He was therefore excused from delivering that part of the cargo which was destroyed by inevitable necessity. But he could recover freight only for that portion delivered. As to the part destroyed, the owner must lose the goods and the carrier the freight. Such was the rule adopted by the referee. [St. Lawrence General Term, October 4, 1865. Ho error was committed in the reception or rejection of evidence. The judgment should be affirmed with costs.- Boches, Baines and JRose-Icrans, Justices.]