Kirkman v. Bowman

ROLLAR.D, J. The only question which this voluminous record presents for our consideration is, whether one of the flatboat loads of cotton, which the steamboat Paragon engaged to tow down the river from Waterloo, on the Tennessee river, was at the risk of the boat in its transit over the Colbert shoals, and until delivered and received at Waterloo, about thirty miles below Tuscumbia. It is necessary to premise, that it was in contemplation to send down by the steamboat Paragon, besides some bales on board, four flat-boats loaded with cotton, which were to be sent over the shoals and taken in tow at Waterloo, the cotton being at Tuscum-bia. The pilot of the boat was dispatched up the river, and brought down two of the flats. Another, which is the one in controversy, was sent down by the steamboat Stacker, arrived safe at Waterloo, but was sunk some hours afterwards, without ever having been delivered to the boat, or even notice given to the captain or owners that it was one of the flats intended for the Paragon. The second clerk of the Paragon, who bad been left at Tuscumbia, it would appear, for the purpose of checking off or taking a note of the bales laden on board the flats, signed a bill of lading at Tuscumbia while the boat was at Waterloo, in the following form: “ Shipped in good order and condition, by Reese, Ferrie & Banks, for account and risk of owners, on board flatboats to be towed by steamboat Paragon, whereof Ragland is [251] master, now lying in the Tennessee river, and bound for New Orleans.” The freight was at the rate of $2 75 per bale. The court, in our opinion, did not err in letting in all the parol evidence relating to the transaction, though tending to contradict the bill of lading, which the court correctly regarded as orAy pri-ma facie evidence of the truth of its contents between the parties; more especially in this case, where, even admitting the authority of the second clerk to sign a bill of lading for articles actually delivered on board, it does not follow that he had authority to make a special contract, and to dispense with the delivery of the property to be conveyed. Again; the bill of lading may be strictly true, that the cotton had been put on board the flat to be towed by the Paragon', and yet the liability of the owners of the Paragon not shown, without proof of a special engagement, that the cotton thus laden should be at the risk of the Paragon from Tuscumbia to New Orleans, while under the charge of persons not employed by them, and unknown to them. The evidence thus let in to show what was the agreement between Bowman, the owner of the steamer Paragon, and Reese, Fer-rie & Banks, the shipping agents of the planters who owned the cotton, shows pretty clearly in relation to the flat-boat which was sunk, that it was to have been delivered by Reese, one of the partners at Waterloo. He testifies himself that he agreed to send the flats, when loaded, to Waterloo to the steamer Paragon. It is true, he insists that the flat was at the risk of the defendant. There is a circumstance which makes against the idea that the load of cotton was to be at the risk of the boat from Tuscumbia. It is, that Bowman was to purchase the boat itself, if it was of a particular quality. It does not appear that that contract was ever completed, for Bowman never saw the boat before she was sunk. The pre-sons charged by Reese to take her over the shoals, never gave him notice that it was the one destined for the Paragon. The c.aptain of the boat is far from proving that Bowman agreed to take the flats on his responsibility at Tuscumbia. He states, that Reese, Ferrie & Banks received lighterage on the two last flats. Two had been taken down by the pilot of the Paragon. Three witnesses swear positively, that the bargain between Bowman and Reese was, that the flats were not to be at the risk [252] of the boat; that they were to be sent down to Waterloo by the shippers, and received there to be towed. The second clerk was left behind for the purpose of taking an account of the cotton, as it was laden on board the flats. It appears also, that although the lighterage from Tuscumbia to Waterloo was included in the bill of lading, yet it was only advanced by the boat; that it was in fact received by Reese, Ferrie & Banks. It constituted a charge upon the cotton, and not a part of the freight. We concur fully with the court below in the opinion, that no custom has been shown in relation to the trade of those places, which should make owners of boats liable for the risk of conveying cotton over the shoals, without their consent. The argument of the counsel for the plaintiff would have great weight, if the bill of lading signed by the second clerk of the boat were conclusive upon the defendants. It would show a special agreement in conformity to the alleged usage of the trade, and a charge of freight from Tuscumbia. But it is not pretended that any such contract was made with the clerk, nor indeed any at all, except what results from the signature of the bill of lading. He might well have authority to execute a bill of lading in the ordinary way, and his receipt for merchandize on board would bind the boat; but his authority must be shown to make a special contract. In this we think the plaintiffs have failed. In the case cited from 5 Durnford & East, no question arose as to the authority of the agents who had given the receipt for the goods to be delivered in Manchester, and which included the charge for cartage at Manchester, from the Duke of Bridgewater’s warehouses into the'city. The goods were left in the warehouses (which were destroyed,) by the carriers who had engaged to convey them into town, having received the cartage. This last was regarded by Lord Kenyon as the decisive fact'in the case ; and so it would be in this case, if the liability of the parties were to be measured by the bill of lading alone. There is but one matter in relation to this case, in which we do not concur in the opinion expressed by our learned brother of the Commercial Court, to wit, that equally strong reasons could be given for deciding the other way. Judgment affirmed,