Page:Federal Reporter, 1st Series, Volume 7.djvu/81

 HBLLIWEIiL V. GRAND TRtTNK BY. OP CANADA. 69 �was the duty of the carrier to deliver the flour in Londell; and to do so Ti^ithin a reasonable time ;, a;id that it was as much ps diiity to sea- sonably provide yessels for ocean transportation as to furnisli cars for the land carriage. �That'if, at the time of maliing the eontract of shipraent; the carrier had no doubt, and, il the condition of business on its iiies gave it no ground for doubling; that suit^hle means would be.at its cpmmand within the U^ual and ordinary time for conveying the flour from Port- land to London, knd if all reasonable efforts were seasonably employea to obtain soch means, and the delay was solely occasioned by ad «xtra- ordinary and! unusual influx :0f freight upon its liaj8s for foreign' export, arising subsequently to the making of the eontract,'80 that it was thereby rendered impossible'for the carrier, with prp'per diligence on its part, to procure vessels to carry the flour- within a reasonabie time, the carrier would not be responsible for the delay.. �But if, at, the, time the contract of shipmjgnt was made, there wa* already an accuraulation of business on the carrier's ]|ines, which incapacitated it, or might reasonably be expected to incapacltate it, for transpdrting and delivering the flour within a f easonable time, and this was then known to the carrier, or might have been' known by proper effort on its part, or if there were then reasonable grounds for a belief on the part of the carrier that such was the state of the case at the time, then the carrier would be liable for the delay, although it was/iccasioned by such accumulation of business. �In such case it is the carrier's duty to iijfprm the shipper of the condition of its Unes, so that he may exercise hia right to seleot some other line foi- the transportation of his property ;' and if the carrier f a;ils io do thia, and takes the property in the face of threaitened ina-> , bility to transport it with requisite dispatch, it must answer for, the, consequences of the delay. . ; ' �A carrier has no right to ta,ke a shipper's property for transporta- tion, concealihgfrom hira at the time existing circumstances within itsf knowledgCi or within its fair and reasonable meanslof knowledge, and not within the knowledge of the shipper, that may incapacltate, or may be fairly expected to incapacltate it for the fuil performanQe of its duty in transporting the pi'operty, and then Claira 'exemption' from liability. , �Van Dyke dt Van Dyke, for plaintiffs. �O. W. Haeelton, for defendant. �Dyeb, D. J., (charging jury.) This is an action brought by the plaintiffs, who compose a firm doing business in this oity, against the defendant company to recover diamages for the alleged failure of the defendant to transport certain quanti- fies of flour which it undertook to carry from Milwaukee to London, England, within such time as it is claimed the same should have been trahsported and delivered to the consignees. ��� �