Lamar v. New York & Savannah Steamship Navigation Co.

— 573 — By the Court. Lumpkin, J. delivering the opinion. [1.] The argument of this case has taken a pretty wide range — though not more so than did the'testimony and the decision of the Court, on the trial below. We shall confine our judgment to the case made by the pleadings. For the sake of accuracy, I herewith insert the declaration and answer filed in this case: “ The petition of Charles A. L. Lamar sheweth, that the New York and Savannah Steam Navigation Company have endamaged your petitioner in this, to wit: For that whereas the said New York and Savannah Steam Navigation Company, a corporation under the laws of the State of Georgia, before and at the time of the committing of the grievances as hereinafter next mentioned, was the owner and proprietor of a certain steamship called the Alabama, to wit:, a steamship plying between the port of Savannah, in the State of Georgia, and the port of New York, in the State of New York, for the carriage and conveyance of passengers, and also of freight for a reasonable hire and reward, between said ports, and being so, the owner of said steamship had advertised for freight for the same for a voyage from the said port of Savannah to the port of New York, for certain specified rates by said defendant, agreed upon and published, and was then and there a common carrier, and subject to all the duties and liabilities by the law imposed upon it, as such common carrier as aforesaid. And whereas, also, while the said New York and Savannah Steam Navigation Company was such owner and proprietor and such common carrier, and had so advertised for freight with certain rates by it put forth and published, to wit: on the twenty-eighth day of February, in the year of our Lord one thousand eight hundred and fifty-two, to wit, in the county aforesaid. Your petitioner being desirous of sending certain, to wit, two boxes from the port of Savannah to the port of New York, caused to be placed on board the said steamship Alabama, rwo boxes about eight feet long and two feet wide, — 574 — marked Robert Collins, New York, and then and there requested the said New York and Savannah Steam Navigation Company to transport the said boxes to the said port of New York, your petitioner then and there tendering to the said New York and Savannah Steam Navigation Company the freight of said boxes, either by measure or weight, as set forth in their published rates of freight. Yet the said New York and Savannah Steam Navigation Company, not regarding its duty in that behalf, but contriving to defraud and injure your Petitioner, did not and would hot convey and carry said boxes to the said port of New York, but removed the said boxes from the said vessel, and utterly refused to transport and carry the same, by means of which refusal of the said New York and Savannah Steam Navigation Company, and of its breach of duty as such common carrier as aforesaid, your petitioner was put to divers expenses in •wharfage and drayage and in the employment of divers persons to remove said boxes and re-ship the same, and was also greatly delayed and injured in his business, for that he was unable to sell divers cottons at large prices and advances, from said refusal of the said defendant to convey the boxes aforesaid, containing the samples thereof. And your petitioner in fact saith that the refusal of the said New York and Savannah Steam Navigation Company, and their breach of duty as such common carrier as aforesaid, hath endamaged your petitioner in the manner aforesaid, one thousand dollars, and thereupon he brings suit. Wherefore, your petitioner prays process may issue requiring the said New York and Savannah Steam Navigation Company to appear and an- swer in the premises. LLOYD & OWENS, Attorneys for Petitioner.” » THE NEW YORK AND SAVANNAH STEAM NAVIGATION COMPANY CHARLES A. L. LAMAR. And the said defendant, The New York and Savannah Steam Navigation Company, by its Attorneys, Law & Bartow, •comes and defends the wrong and injury, when, &c. and says — 575 — that the said defendant, the New York and Savannah Steam Navigation Company, is not guilty of the said supposed grievances above laid to its charge, or any or either of them, or any part thereof, in manner and form, as the said plaintiff hath above thereof complained against it. And of this the said defendant puts itself upon the country, &c. And for further plea in this, behalf, by leave of the Court, have first had and obtained, the said defendant says that the said plaintiff ought not further to have and maintain his said action thereof against this defendant, because the said defendant says, that if there was any such refusal by this defendant to transport the said boxes of the said plaintiff, as in the said plaintiff’s declaration is alleged, the same was occasioned by the said plaintiff’s refusal, on his part, to pay and allow to this defendant the usual and customary charge and compensation on freights for the transportation of samples of cottons, which composed the contents of said boxes, and this defendant is-ready to verify. Wherefore, the said defendant prays judgment if the said plaintiff ought further to have or maintain his said action thereof against this defendant. LAW & BARTOW, Defendant’s Attorneys Thus it will be perceived, that Mr. Lamar, the plaintiff, claimed to recover damages of the defendants as common carriers, for not transporting two boxes in the steamship Alabama, from the port of Savannah to the port of New York, notwithstanding a reasonable hire or reward was tendered for said serviee, according to specified rates agreed upon and published by the defendants. The defendants pleaded the general issue,, and insisted that if there was any such refusal, on their part, as that complained of, it was because the plaintiff failed or refused to pay the customary compensation for the transportation of his goods. The issue, therefore, made by the pleadings is, did the plaintiff offer to pay the usual rates for the service which he required? That question, we think, was properly submitted by — 576 — his Honor, Judge Fleming, to the Jury; and the verdict having been found for the company, it shouM not be disturbed. Moreover, we think the plaintiff acted under a misapprehension, as to the duties and liabilities of the company, connected with this transaction. It seems, from the proof, that sometime since, hand-bills were published and circulated, purporting to contain the established rates of freight between New York and Savannah, by the steamships Florida and Alabama. Toward the close of this list is this item:, “ Measurement articles, not enumerated above, such as boxes, &c. per foot, 12-£.” Under this item, Mr. Lamar insisted on shipping two boxes, which were closed up and which contained 2200 cotton samples, as ordinary merchandise, at twelve and a half cents per foot, and no more. The rates demanded for cotton samples, by the boat, were one cent per sample. The merchants who were sworn on the trial,, testified that they were in the habit of paying one cent per sample. Mr. Rhind, the witness for the plaintiff, admits that he had heard of this, and believed it to have been the rates-charged, before these boxes were offered. This was a new business which had sprung up recently; and these rates were established in order that those who shipped cotton by the steamers, should have an advantage over those who shipped by the sailing vessels. Nothing was charged for the samples when the bales were shipped by the steamer. But to counteract the preference given to the steamers, it had become a habit to send samples, by the steamer, of cotton on board the sailing vessels, which could be sold by the samples, to be delivered on its arrival, and thus compete with that on board the steamers. Was it right that the plaintiff should derive this benefit from the transaction, and not make adequate compensation ? With this adventitious value attached to these cotton samples, should they not have been taxed higher than ordinary merchandise ? Were the owners of these steamships to be compelled, as common carriers, to commit pecuniary suicide ? to become the authors of their own undoing ? The injury resulting to the company, as well as the benefit accruing to the shippers of cotton, — 577 — justified this extra charge. Even the printed rates provided that if extra valuable packages were shipped, the value must be declared and paid for accordingly; otherwise, the ship would not be held responsible. And it is too limited a view of the subject to hold that this extra value was restricted to the intrinsic value of the article merely. From the fact that shipments of specie were required, in all cases, to be made known at the office of the agent, before going on board, it is contended that other articles, not enumerated, came under the head of ordinary merchandise. The presiding Judge put this point, we think, strongly in his charge to •the Jury.. “ The fact”, said he, “that cotton samples áre not mentioned in the printed list, does not vary the question, if the fact he established that one per cent, per sample is the freight uniformly charged, and paid for samples. For example, the freight on a tea-chest is fifty cents. Does any one suppose that a merchant may avoid the payment of this freight, by putting the chest in a box ? Certainly not. Why? Not because tea-chests are mentioned in the freight list, but because this is the usual freight for tea-chests. The principle depends upon the fact, not upon the manner in which the fact is proven. The usual freight may be proven, by the freight list, but if the particular article is not upon the freight list, the usual freight may be proven by witnesses. Let it be assumed that the usual freight'on cotton samples is one cent per sample (and this fact was left to the Jury) I say now, as I said to the Jury on the trial, that the plaintiff cannot avoid this freight, by putting the ■samples in a box. One more illustration, and I am done with this point. The freight, on dead bodies is, I believe, ten dollars. Dead bodies are not 'mentioned in the freight list (neither are cotton samples). Is this company bound to carry dead bodies at the freight by the size of the coffin or the box in which the body may be enclosed.?” . I will only add, that the law which forces common carriers to transport freight at the usual rates, is, itself, an exception to the voluntary principle upon which other contracts are — 578 — founded, and of doubtful expediency. We are unwilling to extend the doctrine any further than it has gone. Whether Captain Ludlow, the master of the vessel, was authorized to make a special agreement with Mr. Lamar, relative to this freight, at the place of the residence of the part owners and agents of the ship, who' were personally present, interfering in the mattér and, virtually repudiating the contract, if, indeed, any such were made, we have deemed it unnecessary to decide. Suffice.it to say,, that this action is not brought to recover damages for the breach of any such supposed agreement. The doctrine upon this point will be found to be very clearly stated by Mr: Flanders, in his Treatise on Shipping. (§141, 147 and 477, and the notes thereto appended. Abbott on Shipping, 161, note 3. Story on Agency, §116. 6 Cowen’s Rep. 173. 11 Mass. R. 99. 3 Pick, Rep. 495 and 3 Sumner C. C. Rep. 228.) In this last case, Judge Story, devoted as he was to this branch of the science — Maritime Law— has exhausted all the learning of the books upon this subject. Judgment affirmed.