Page:Federal Reporter, 1st Series, Volume 7.djvu/84

 jj.- Upon ihe, nn4^BRV^tpd, le-i^i^psce, I am of ; the. opibiofn, (a^ alr^^^y^^^xprescedtp Qounsel,) iandmustiiasttfuet yau,;tbat in ^ respects, whereia %h,^ .bills.of lading did not iimit tke der- feodant's liability as a pQmmon: cafrjer, theyicpnstituted the contiract; betw^en tire parties r and, thereioi«,:so.far as this question ql, the;Tes§^l cn whicbthe flourshbuld be shipped ff^^ Portlapd ^ip concerned, thied^endant was ;not bound to ship it on the Argosy alone, but bad the right to skip it on tbatyjBSsel or any,j9ther,yessejl ol^equal clasg. witibthe.AjigDsy for |m,arj^e^^in8J^ance. ; T^hp., contract, tban> waa that vthe d^- fe^dantj^o^ld take thec ,flQur ip, questioa ajb MJwall'kee.icoia' ye;^ it tp, .JJu,dington l?y the J^ortiiQrn Transit, Une, thenoeiby the YirA &,|!Pere .M^jcqiiette'milroad and the defepdanais line to Pj9.c|;fai;di, and thenc^; ,by, the steam-ship Argosy pr som'e ofli^r yesael of equai cla^s fpr, marine i.ns,urance; to, London. The,bjjls,pf Jadipg CQiitaiped ; a condition that the dpfendant Rhouldnpt. be liabl^ ^cr .dels.ys.in, transporting the flcwir.oc- cajsioj^ed by overpre^giirp pf fije^ght; and there bas been «a good 4e3J .pf controyersy, on the,;trial ap to the ofEeM of thi* condition, and a^,to.-v5^etheir the, condition was bindifi|j,'vipon the plaintiffs as- part ot the contx'acfc. -/iriivie'w, howevw, .pf the fflict that in the ppfnion cf. the court that clause Iwoilld, if regarded as part of the contrafit, give no greater exemption to the carrier than, it would be entitled to iby law„all question as to whether that clause was part of the plaintiffs' contract or not, becomes of no importance in theviewof bpth counsel and the; court, and it is therefore unnecessary tO' submit; to you questions as to the oharacter and effeet of that condition ■which pthcrwise might be material, �It is claimed by the plaiptiffs that the flbur in questioii was not transported by the defendant and delivered in Lon- don with proper dispatch ;, * * * that it was unreason- ably detained in Portland after its arrivai at that port. It is claimed that these alleged delays were attributable to the fault, of the defendant, and to its neglect tp furnish such means of, conveyance and, iacilitics for transpprtation as the compp,ny were, under its contract, bound to furnish to enable it to deliver ^he flour in London within a proper and rea- ��� �