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York, with an exception of the liability of the carrier for losses by fire in depot, and the freight was carried "all rail" as far as Philadelphia, and there delivered for further transportation to the defendant railroad company, by which it was carried to destination, but was transported for a portion of the distance in a steamboat instead of by rail, it was held that the carrier had, by failing to comply strictly with its contract, forfeited the benefit of the exceptions in the bill of lading; and the cotton having been burned in its depot after its arrival at New York, it was held liable. It was said that a literal performance of the contract would have been impossible, because it was necessary to cross both the Ohio and the Hudson rivers before New York could have been reached. But the contract, it was said, was to have a reasonable construction, and the necessity of crossing ferries in the course of the transportation must have been known to the parties, and water carriage, to this extent, must have been authorized from the necessity of the case, and the contract to carry by rail would have been substantially performed by the transportation by rail so far as was practicable; but that the carrying of the goods by steamboat from Amboy to New York was not a necessity; and while the defendant could not have sent them otherwise by its line, it could, upon seeing the direction in the bill of lading, have declined the service; but having undertaken it, it took upon itself also the obligation of the contract, and became an insurer of the safety of the goods when it failed to comply with its stipulations as to the mode of carriage. And where a verbal contract was made by the shipper with an agent of a railroad company to transport goods "all rail," at "all rail" rates, from Cincinnati to New York, and the goods were carried to Baltimore by "all rail,” and were there shipped on a steamer for New York, the carrier was held liable for the loss of the goods by the wrecking of the vessel in a storm at sea; because, the goods having been shipped under an agreement that they should be carried all rail, a loss occasioned by their being carried by sea, in viola

1. Maghee v. Camden & Amboy R. R., 45 N. Y. 514.

tion of such agreement, was no excuse for their non-delivery to the consignee.2

Sec. 619. (§ 316.) Same subject.-Following the same rule, it was held that the carrier was liable in damages for the consequent delay where the shipper directed that the goods should be carried by one sea route, and the carrier sent them by another route more exposed to the risk of delay.3 So where the carrier undertook to send the goods by a steam vessel, and sent them by a sail vessel, he was held to have become, by such a departure from his duty, an insurer of their safety, and the goods having been lost in a storm, he was held liable for their value; and the same rule was applied where, having undertaken to ship goods "by sail on the lake," he sent them by steam and the goods were lost. So where a valuable parcel was delivered to the carrier to be forwarded by a certain specified coach, but the carrier, disregarding the instructions of the bailor, sent it by another coach, and it was lost, it was held that he was liable, although he would not have been liable had he sent it as directed and it had been lost, because the bailor had fraudulently concealed its value and no insurance had been paid upon it, according to the carrier's notice, Bayley, J., saying that, "if the defendant had sent the parcel by the mail, in pursuance of his contract, I should have been of opinion that, under the circumstances of the case, he would not have been liable for the loss. But, having sent it by a different mode of conveyance, I am of opinion that he is liable."

Sec. 620. (§ 316a.) Same subject. So where the carrier by his contract agreed that the goods should be transported without change of cars, but this agreement was not observed, it was held that the carrier was liable for a loss which ensued and

2. Bostwick v. B. & O. Railroad, 45 N. Y. 712.

3. Mallett v. Railway Co., (1899) 1 Q. B. 309, 68 L. J. Q. B. 256, 80 Law T. (N. S.) 53, 47 Wkly. Rep. 334.

4. Wilcox v. Parmelee, 3 Sandf. 610.

5. Merrick v. Webster, 3 Mich. 268.

6. Sleat v. Fagg, 5 Barn. & Ald.

342.

could not claim the benefit of restrictions upon his liability contained in the contract which he had violated.7

And where a shipping contract provided that stock should be carried through to destination in the car in which they were loaded, the carrier was held liable for changing the stock during transit from such car to a smaller car whereby they were injured.s

Sec. 621. Liability of carrier where, notwithstanding an unauthorized deviation, the goods arrive on time.-If, notwithstanding an unauthorized deviation from his route, or a non-observance of his contract by the first carrier, the goods arrive on time at their destination, the consignee cannot, because of such unauthorized deviation or non-observance of the contract, refuse to receive them and claim a conversion by the first carrier. And this is true although the last carrier may have sold the goods illegally on the consignee's refusal to receive them. But the consignee is not thereby precluded from the right to recover from the first carrier such damages as are the proximate result of the deviation. Thus where in consequence of a deviation, the consignee failed to receive prompt notice of the arrival of the goods, their market value having in the meanwhile diminished, it was held that he was entitled to recover from the carrier for such diminution in value.9

Sec. 622. Construction of clauses in contracts of affreightment permitting deviations-Printed forms.-Where general words permitting deviations are used in a printed form, and such words are obviously intended to apply, so far as they are applicable, to the circumstances of a particular contract which is embodied in the printed form, the court will be justified, in construing the general words, in looking at the whole contract, and in limiting such general words to the main object and in

7. Stewart v. Transportation Co., 47 Iowa, 229.

8. Felton v. Live Stock Co., 22 Ky. L. Rep. 1058, 59 S. W. Rep.

9. Southern Pacific Railroad Co. v. Booth, (Tex. Civ. App.) 39 S. W. Rep. 585.

tent of the contract. General words in a printed form are intended to be used in relation to a variety of contracts of affreightment. In the case of a shipment by vessel, the name of the particular port of shipment, as well as the goods to be shipped, is usually left in blank, and the printed general words are treated as a liberty which is to attach to the particular voyage. But the main object and intent of the contract is the voyage agreed upon; and while the printed general words must not, in construing the contract, be discarded, it is well recognized that when considering what the main object and intent of the contract is, it is proper to bear in mind that a portion of it is on a printed form applicable to many voyages and is not specially agreed upon in relation to the particular voyage. Thus where the main object of a charter party was the carriage of cranges from Malaga to Liverpool, but the ship took in cargo. at Burriana, a port about 350 miles from Malaga, and the shipowner sought to justify the act of proceeding to Burriana by reason of the following printed general words, "with liberty to proceed to and stay at any port or ports in any rotation in the Mediterranean, Levant, Black Sea or Adriatic, or on the coasts of Africa, Spain, Portugal, France, Great Britain and Ireland, for the purpose of delivering coals, cargo or passengers, or for any other purpose whatsoever," it was said by the court "that it would be to defeat what is the manifest object and intention of such a contract to hold that it was entered into with a power to the shipowner to proceed anywhere that he pleased, to trade in any manner that he pleased, and to arrive at the port at which the oranges were to be delivered when he pleased." It was further said that there is no difficulty in construing such a clause to apply to a liberty in the performance of a stipulated voyage to call at a particular port or ports in the course of the voyage, but it must be a liberty consistent with the main object of the contract-a liberty only to proceed to and stay at the ports which are in the course of the voyage, perhaps not in the course of the voyage in a literal geographical sense, but speaking in a strict business sense. The words "in any rotation" were held not to enlarge the

number of ports at which it would be justifiable for the vessel to touch during the course of her voyage.10

Sec. 623. Construction of clauses reserving leave to tow and assist other vessels.-A clause in a bill of lading reserving leave to "tow and assist vessels in all situations" does not justify an unnecessary deviation in rendering a salvage service by going to a distant port instead of the one most reasonably accessible in the particular circumstances of the case. The shipowner will be liable in damages for such unnecessary deviation if the cargo deteriorates in value or is damaged thereby.11

Sec. 624. Carrier not liable if loss occurs through misconstruction of bill of lading by shipper.-The carrier, however, will not be liable for any loss occurring through a misinterpretation of the bill of lading by the shipper. Thus the steamship Kansas was one of the Warren line of steamships and was advertised to sail and did sail from Boston January 26, 1897. On January 23rd, a bill of lading was delivered to the libelants for thirty-two barrels of old metal to be transported by the Kansas, but the following clause was inserted in the bill of lading: "It is mutually agreed that, in case the whole or any part of the goods specified herein be prevented by any cause from going in the said steamship, the carrier shall have liberty to forward them by succeeding steamship or steamships." The metal was received on the dock January 22nd. Owing to the fact that preference had to be given to perishable cargo, there was no room in the Kansas left for the metal, and it was shipped on the succeeding steamship, Angloman, which sailed four days later. The Angloman was totally lost through perils of the sea. The libelants insured their cargo on the Kansas on July 23rd for $2,500.00, and had no insurance by any other ship. The insurance company refused payment, as they had insured by the Kansas only. The libelants were not

10. Glynn v. Margetson & Co., L. R. (1893) App. Cas. 351, 62 L. J. Q. B. 466, affirming (1892) 1 Q. B. 337, 61 L. J. Q. B. 186.

11. Schwarzchild v. Steamship Co., 74 Fed. 257. See also, In re Meyer, 74 Fed. 881.

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