Texas Pacific Railway Company v. Reiss

This action was brought in the circuit court of the United States for the southern district of New York by the plaintiffs, who are defendants in error here, and are residents of Liverpool, England, to recover the value of some 200 bales of cotton destroyed by fire at Westwego, Louisiana, opposite the city of New Orleans, November 12, 1894, at a pier on the west bank of the Mississippi river, owned by the plaintiff in error. This is the same fire which is mentioned in Texas & P. R. Co. v. Clayton, 173 U.S. 348, 43 L. ed. 725, 19 Sup. Ct. Rep. 421. Upon the first trial the court directed a verdict in favor of the defendant, but the judgment entered thereon was reversed by the circuit court of appeals (39 C. C. A. 149, 98 Fed. 533), and a new trial granted. Upon the second trial the court, following the opinion of the circuit court of appeals, directed a verdict for the plaintiffs for the value of the cotton, and the judgment entered upon that verdict having been affirmed by the circuit court of appeals on the authority of its former opinion (39 C. C. A. 680, 99 Fed. 1006), the railway company brings the case here by writ of error. The defense of the company is based upon a clause in the bill of lading which will be set out hereafter.

The cotton had been shipped at Temple, in the state of Texas, on the Missouri, Kansas, & Texas Railway, to be carried over its road and the defendant's road to New Orleans, and from that port to Bremen. It arrived at New Orleans at the pier of the railway company November 6, 1894. One hundred and sixty bales were unloaded on November 7, and the balance soon thereafter, but on what day is not certain. One hundred and twenty bales were unloaded and placed at one point, and two different lots of forty bales each were deposited at other points, thus leaving the cotton at three different points on the pier of the railway company. At this time the pier was quite full, there being over 20,000 bales deposited upon it and some 8,000 bales in cars waiting to be unloaded. The pier was built, owned, and in the exclusive possession of the railway company. The bill of lading which was issued at Temple, in the state of Texas, by the Missouri, Kansas, & Texas Railway, expressed on its face to be on behalf of that company, and also the defendant company and the steamship company. It was an elaborate document, and purported to be 'an export bill of lading approved by the permanent committee on uniform bill of lading.' It acknowledged the receipt of the cotton consigned as marked, and to be carried to the port of New Orleans, Louisiana, and thence by the Elder, Dempster, & Company's steamship line to the port of Bremen, Germany. It had conditions which are stated to be:

'(1) With respect to the service until delivery at the port of New Orleans, Louisiana.'

'(2) With respect to the service after delivery at the port of New Orleans, Louisiana.'

There are 12 clauses relating to the service until delivery and 15 clauses relating specifically to the service after delivery at the port of New Orleans. Those clauses which are specifically referred to in this case are numbered 3, 11, and 12 in the bill of lading. They read as follows:

'3. No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee. . . .'

'11. No carrier shall be liable for delay, nor in any other respect than as warehousemen, while the said property awaits further conveyance; and in case the whole or any part of the property specified herein be prevented by any cause from going from said port in the first steamer of the ocean line above stated leaving after the arrival of such property at said port, the carrier hereunder then in possession is at liberty to forward said property by succeeding steamer of said line, or, if deemed necessary, by any other steamer.

'12. This contract is executed and accomplished, and all liability hereunder terminates, on the delivery of the said property to the steamship, her master, agent, or servants, or to the steamship company, or on the steamship pier at the said port; and the inland freight charges shall be a first lien due and payable by the steamship company.'

The usual method of handling cotton upon its arrival at the pier of the company at Westwego, Louisiana, is stated, as both counsel in this case agree, with substantial accuracy in Texas & P. R. Co. v. Clayton, 173 U.S. 348, 352, 43 L. ed. 725, 727, 19 Sup. Ct. Rep. 421, 423, as follows:

'The mode in which the railway company and the steamship company transacted business was as follows: Upon the shipment of cotton, bills of lading would be issued in Texas to the shipper. Thereupon the cotton would be loaded in the cars of the railway company, and a waybill indicating the number and initial of the car, the number of the bill of lading, the date of shipment, the number of bales of cotton, the consignor, the consignee, the date of the bill of lading, the number of bales forwarded on that particular waybill, the marks of the cotton, the weight, rate, freights, amount prepaid, etc., would be given to the conductor of the train bringing the car to Westwego. Upon the receipt of the waybill and car at Westwego, a 'skeleton' would be made out by the clerks at that place for the purpose of unloading the car properly. It contained the essential items of information covered by the waybill, and had also the date of the making of the skeleton. When this skeleton had thus been made out and the car had been pushed in on the side track in the rear of the wharf, it would be taken by a clerk known as a 'check clerk,' and with a gang of laborers, who actually handled the cotton and were employed by the railway company, the car would be opened; and as the cotton was taken from the car bale by bale the marks would be examined to see that they corresponded with the items on the skeleton, and the same were then checked. The cotton thus taken from the car was deposited at a place on the wharf designated by the check clerk, and it would remain there until the steamship company came and took it away. After the checking of the cotton in this way to ascertain that the amounts, marks, and general information of the waybill were correct, the skeleton would be transmitted to the general office of the Texas & Pacific Railway Company in New Orleans, which thereupon would make out what was designated as a 'transfer sheet' that contained substantially the information contained in the waybill, and which being at once transmitted to the steamship company or its agents was a notification understood by the steamship company's agents that cotton for their line was on the wharf at Westwego ready for them to come and take away. Upon the receipt of these transfer sheets the steamship company would collate the transfers relating to such cotton as was destined by them for a particular vessel, advise the railway company with the return of the transfers that this cotton would be taken by the vessel named, and would thereupon send the vessel with their stevedores to the wharf at Westwego. The clerk at Westwego would go around the wharf and, by the aid of the transfers returned from the steamship agents, point out to the master or mate of the vessel, or the one in charge of the loading, the particular lots of cotton named in the transfers and designated for his vessel, and the stevedores and their helpers would thereupon take the cotton and put it on board the ship. In connection with the loading upon the vessel, or after the cotton was pointed out in lots, the master or mate would sign a mate's receipt for this cotton. The stevedores and all men employed in loading the vessel were wholly in the employ of the steamship company. The time of coming to take cotton from the wharf was entirely in the control of the steamship company. They sent for it as soon as they were ready.'

At the time of the fire it is conceded that no transfer or skeleton sheets had been sent to the steamship company, or notice given it of the arrival of this cotton at the pier of the railway company.

Messrs. Rush Taggart and Arthur H. Masten for plaintiff in error.

Messrs. George Richards, Frederick E. Mygatt, and Treadwell Cleveland for defendant in error.

Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court: