Crawford v. Clark

Caton, J. The. question presented by this record is of deep commercial interest. The law seems to be so well settled by general usage, of which the courts will take notice without proof of the custom, that vessels engaged in foreign commerce are not bound by a bill of lading in the ordinary form, to deliver goods brought from a foreign country, to the consignee personally, but it is a discharge of the obligation which the carrier has assumed, if he lands them at the usual wharf of such vessel in a proper manner, or other safe landing at the port of delivery, and gives due and reasonable notice thereof to the consignee.. Here the bill of lading was in the usual form, and the defendants below insist that by observing this rule they were discharged from their contract, while the court instructed the jury that they were liable if the iron was not actually delivered to or taken possession of by Dole, Rumsey & Co., who were the consignees, unless they showed that they put the iron in some safe warehouse for the plaintiffs. The iron which was lost did not belong to the consignees, but was the property of the plaintiffs, who resided in the country. The goods were shipped from Pittsburgh, and were taken on board the propeller at Cleveland, so that we have the naked question presented, whether the rule which seems to govern the contracts of carriers for the transportation and delivery of goods from foreign ports, is also to control the coasting trade. This rule which relates to foreign commerce originated in commerce upon the high seas, and it there where we find it most generally applied, and we consider it still an open question whether it is applicable, and should adapted to the trade upon our inland lakes and rivers, although the goods may be brought from the dominions of another sovereignty. That question we are not called upon to decide in this case, nor does it become our duty now to inquire into the reasonableness of the rule when applied to foreign commerce carried on upon the high seas. It is sufficient that we find the law has not settled this question of right, as arising out a contract for the transportation of goods from one port or to another in the same country. That is generally left to settled by the custom of the port or place where the contract to be performed, where, as in this case, the precise mode of formance is not determined by the contract itself. But here question is raised independent of any such custom, and we called upon to determine it as a matter of law simply. In case of the Grafton, 1 Blatchford, 175, the court said, “ that a well settled course of trade, such as existed in New York, relation to coasting vessels, the delivery of the cargo upon dock with notice to the owners of the time and place of . loading them, placed the cargo at their risk, and discharged the vessel from liability. But that in case the cargo was addressed to a mere consignee, the vessel would be under the further obligation to secure the property after it was unladen if no consignee appeared, or if he refused to accept the goods.” The judgment at once assents to this additional duty imposed upon the carrier. The safety of those who are compelled to intrust their property to the hands of strangers to be transported, requires this protection, and the wonderful increase of commerce and the vast accumulation of freights at commercial points, and the consequent liability to confusion and miscarriage, admonish us that the owners of these goods should receive every reasonable protection. The tendency of the age, especially among carriers, is to attain the greatest possible despatch, and this materially begets a disposition among all their servants, to hasten every thing and get the goods off their hands as soon as possible, almost regardless of every other consideration, and this disposition, at least, should be so far tempered by responsibility as to admonish them that they are paid for taking care of goods as weE as forwarding them. It is but little satisfaction to the owner to know that his goods have been -forwarded promptly, if they are lost or stolen after they get through. If the owner is his own consignee, and is notified of the landing of his goods at a proper place, and they are protected a reasonable time for him to take them away, and he neglects to do so, he has less cause to complain of their loss, which may be fairly attributed to his own neglect. But the case is very different when the consignee is not the owner. It is, no doubt, the duty of every warehouse-man to receive and take care of all goods consigned to him, where he has the capacity to store them, and he is liable for neglecting or refusing to do so. But this liability of the consignee will often prove a very inadequate security to the owner. The consignee may not be a warehouseman, and in that event he would not be bound to receive the goods, and thus the owner would have no one responsible for their loss, while the most wanton waste might be committed by the carrier in suffering them to lay upon the dock and be destroyed by the weather, when he knew the consignee refused to receive them. If I consign my trunk, or a box of bo oles, or any other, article to a supposed friend, at the port of destination, who refuses to receive them, may the carrier leave them upon the dock to be plundered by thieves, or destroyed by the weather, or lost by accident? Or rather should he not put them in a safe warehouse, with notice of the deposit, to the owner, or at least to the consignee? A due regard to the great interests which are constantly in transitu in this country, must require this. While it is indispensable to the interests of the owner, it is no hardship to the carrier. So long as we are bound down by no arbitrary rule of law in this case to excuse him from this duty, we do not hesitate to say, that the best interests of commerce require that we should hold him to its performance. We approve of the instruction given by the circuit court upon this point, and, according to the testimony of two of the witnesses, it seems to be in conformity to what is required by the course of trade at the port of delivery. The seventh instruction which was asked for the defendants below and refused by the court, remains to be considered. That instruction is as follows : “ That if the jury shall find from the evidence in this case that there exists a uniform and clearly established usage by which propellers and steamboats leave their freight at their usual dock, and that if the consignee has notice of such landing, it is by such custom deemed a delivery to the consignee, and that the defendants landed the iron in this case at their usual dock, and that Dole, Eumsey & Co. or their check clerk had notice of said iron so landed, and were there while it was being delivered, and the iron was piled up for the consignees of the plaintiffs, the law is with the defence.” Without again examining the reasonableness of such a custom, it is very clear that the instruction, as asked, does not require such a proof of the usage as would entitle it to be considered as entering into and forming a part of the contract of affreightment. This question of commercial usage was considered by this court, with some care, in the case of Dixon v. Dunham, 14 Ill. 324. It was there held, as it has been held everywhere else, that a usage to become binding upon parties, must have antiquity as well as uniformity and universality, whereas this instruction supposes the custom of a day may become binding upon parties, so as it be uniform and clearly established, whether the jury might believe that the parties contracted in view of it or not. Commercial interests require that the 'well-established rules of law, by which the customs of a particular place become incorporated into the contracts of parties, should not be relaxed. They may be well admitted, when they are not inconsistent with the contract of the parties, when they are reasonable, of long standing, uniform, clearly established, and well understood, and not inconsistent with any rules of law. By comparing the instruction with this test, it will be seen at once that it was properly refused. The judgment must be affirmed. Judgment affirmed.