Jennings Automatic Dump Body, Inc. v. Virginian Railway Co.

Sims, J., after making the foregoing statement, delivered the following opinion of the court: The decision of the ease turns upon a single question, namely: 1. Was notice from the terminal carrier, the Erie Railroad, to the plaintiff, the consignor, of the fact that the goods would be, or were, stored in the public warehouse, where they were in fact stored on September 11, 1920, essential in order to terminate the contract of carriage? The question must be answered in the negative. The shipment being an interstate shipment, the liability upon the defendant (except as forwarder), if — 222 — any exists, is confined to the liability which is imposed by the Federal legislation governing interstate commerce, consisting of the Carmack amendment of the-act of Congress regulating such commerce and the-amendment thereto (U. S. Comp. St. §§8604a, 8604aa). C. & O. R. Co. v. Bank, 122 Va. 471, 95 S. E. 454, and cases cited. The liability thus imposed upon the defendant, the initial carrier, is precisely the same as, and no more than, it would have been had it “contracted for through carriage to the point of destination, using the-lines of connecting carriers as its agents. Atlantic, etc., R. Co. v. Riverside Mills, 219 U. S. 186, 196, 31 Sup. Ct. 164, 55 L. Ed. 167, 178, 31 L. R. A. (N. S.) 7. And, under the Carmack amendment, what has been just stated is the test of liability of the initial carrier, where-bill of lading is issued, as well as where no bill óf lading-is issued (C. & O. R. Co. v. Bank, supra, 122 Va. 471, 95 S. E. 454); and the question of whether a particular-shipment is embraced within the scope of the Carmack amendment must be determined by the essential character of the shipment and not by mere billing or mere-forms of contract (Chicago, etc., R. Co. v. Iowa, 233 U. S. 334, 34 Sup. Ct. 592, 58 L. Ed. 988, 992); even change of title (Gulf, etc., R. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540), or change of consignee, or change of destination of the goods, or the surrender of the original bill of lading and the issuance and acceptance of a new and different bill of lading (Missouri, etc., R. Co. v. Ward, 244 U. S. 382, 37 Sup. Ct. 617, 61 L. Ed. 1213; Atchison, etc., R. Co. v. Harold, 241 U. S. 371, 36 Sup. Ct. 665, 60 L. Ed. 1050), occurring at any time while the goods are in transit, that is, at any time before the contract of carriage is completed, having no effect-upon the interstate character of the shipment given by the initial express or implied contract of carriage; and,. — 223 — hence, leaving the aforesaid liability of the initial carrier still existing for any failure to perforin such contract. And, where a bill of lading is issued by the initial carrier upon an interstate shipment, that bill of lading “governs the entire transportation.” (Missouri, etc., R. Co. v. Ward, just cited.) Moreover, the entire transportation “includes delivery.” (Georgia, etc. R. Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 541, 60 L. Ed. 948, 952.) In the instant case, the shipment was interstate and the bill of lading issued by the defendant, the initial carrier, expressly embraced the provisions of interstate tariffs, which permitted reconsignment and change of destination at any time before the contract of carriage was completed. So that, if at the time the plaintiff gave to the defendant the order of reconsignment and of change of destination of the goods to be made at Cleveland, the original contract of carriage had not been completed, the compliance with that order, would not have abrogated the original contract, but would have been in conformity therewith, and the defendant would have been liable for the conversion of the goods if it wrongfully refused or failed to comply with such order (Atchison, etc., R. Co. v. Schriver, 72 Kan. 550, 84 Pac. 119, 4 L. R. A. [N. S.] 1056), as, for example, if it refused to comply with the order except upon payment of excessive storage charges. 4 R. C. L. 837; 10 C. J. 273-4. As held in the case next above cited, such an order in such a situation “is equivalent to a demand for delivery.” But, it is firmly settled that the entire transportation of an interstate shipment is completed, and that there is no longer any liability upon the initial carrier for a conversion of the goods, when a change of the relationship of the terminal carrier from that of carrier — 224 — to that of warehouseman of the goods occurs, or when there is a termination of the relationship of carrier by the delivery of the goods to another as warehouseman, in accordance with the provisions of the initial contract of carriage (the bill of lading, where there is one issued), not in conflict with the Carmack amendment as amended. N. Y., P. & N. R. Co. v. Chandler, 129 Va. 695, 106 S. E. 684; Southern Ry. Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Gulf, etc., R. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540. And where the interstate contract of carriage has been fully performed by the completion of the entire transportation undertaken by the initial contract (which is the situation, as aforesaid, when the relationship, as carrier, of the terminal carrier has been changed or terminated as just stated), as said by the Supreme Court in Gulf, etc., R. Co. v. Texas, supra, 204 U. S. at p. 412, 27 Sup. Ct. at p. 363, 51 L. Ed. at p. 546: “Whatever obligation may rest upon the carrier at the terminus of its transportation to deliver to some further carrier, in obedience to the instructions of the owner, it is acting, not as carrier, but simply as a forwarder.” Now the instant case is different from N. Y., P. & N. R. Co. v. Chandler, supra (129 Va. 695, 106 S. E. 684), and from many other eases involving order notify bills of lading found in the books, in this: The plaintiff, owner, it will be observed, is not, in the instant ease, named as consignee in the bill of lading. The goods were “consigned to the order of,” not to the plaintiff owner. Under the direction in the bill of lading, “notify Penn Square Body Company, at Cleveland, Ohio,” the terminal carrier at Cleveland was authorized to consider such company as the consignee — 225 — and to give to it, as consignee, all the notices required by the bill of lading and the provisions of the interstate tariffs aforesaid to be given to the consignee, in the absence of notice that the consignee had been changed and in the absence of refusal by such consignee to accept the shipment. In that situation the Penn Square Body Company remained the consignee unless and until it refused to accept the shipment. And in the instant case there was no refusal by such consignee to accept the shipment, until after the goods were stored in the public warehouse by the terminal carrier, the Erie Railroad, on September 11, 1920. All of the authorities which have been cited before us on this point are to the effect that, in such a situation, no duty rests upon the terminal carrier to notify the consignor that it holds the goods as warehouseman or has stored the goods with another as warehouseman; and that the relationship of carrier is terminated by such holding or storing, provided the notice to the consignee of arrival of the goods required by the bill of lading and tariff provisions involved has been duly given, and the free time allowed by the tariffs has expired. 4 A. L. R., note, pp. 1290-1. And such holding would seem to be but fair and just. So long as the consignor elects to continue to allow the order notify consignee to continue as such, it would be unfair to the carrier to require it to give to the consignor the notices which are required to be given to the consignee only. To do so would be the making and enforcing by the court of a contract for the parties contrary to the contract which they made for themselves, as interpreted by the Federal legislation on the subject. In the instant case, when section 5 of the bill of lading and the tariff rules, made thereby a part thereof, are construed together, all the notice required to be given by the terminal carrier prior to the accrual of its right to — 226 — store the goods in a licensed warehouse, as was done, was required to be given to the consignee only. Section E-l of the interstate demurrage tariff, offered by the plaintiff in evidence, which requires notice of refusal of consignee to accept the goods to be given the consignor, is not applicable to the instant case, for the reason that the consignee did not refuse to accept the goods while they were in the custody of the carrier. Prior to such refusal (which when it occurred was not made indeed to the terminal carrier at all, but to the plaintiff direct), the terminal carrier had given all the notice required, as aforesaid, in order to authorize it to exercise its right of election to store the goods as it did, and had so stored them; which action, under the Supreme Court decisions above cited, terminated the initial contract of carriage and all liability of the defendant thereunder. The defendant did not thereafter owe any duty to the plaintiff under such contract, except, perhaps, as forwarder. Whether the defendant is liable to the plaintiff for damages for default in the discharge of its duty to the plaintiff, in the relationship of forwarder, is not a question which is involved in the case as presented by the pleadings and assignments of error before us. Hence, we do not pass upon that question in any way, affirmatively or negatively. Service order No. 1, offered in evidence by the plaintiff, is relied on for the plaintiff as requiring notice of the diversion of the shipment to be given to it; but even if otherwise applicable (which we do not decide), that order did not require any notice of the diversion of the shipment over the line of the Erie Railroad, which was made at Deepwater, to be given to the plaintiff, consignor. That order required notice of the diversion to be given only to the consignee, in the eases to which — 227 — it was applicable. The record does not disclose whether the- consignee was or was not given, at the time of the diversion to the Erie Railroad line, notice thereof, but it does show, as aforesaid, that promptly after arrival of the goods at Cleveland notice of such arrival was given the consignee by the Erie Railroad Company, and information as to where the car was placed to permit the unloading of the goods by the consignee, which served every purpose that notice to the consignee of the aforesaid diversion would have served -if given at the time of the diversion, many days before the goods were stored as aforesaid. The judgment under review will be affirmed, with provision in our order, however, to the effect that such judgment shall in no way prejudice the plaintiff, nor shall what we have said above in any way prejudice the plaintiff or defendant, in any proceeding the plaintiff may institute, if so advised, against the defendant for damages for default or breach of duty as forwarder. ' Affirmed.