
    Charles A. Johnson, Plaintiff, v. The Missouri, Kansas and Texas Railway Company of Texas, Defendant.
    
      Bill of lading— liability of the earner issuing it for delay in transportation over a connecting line — ambiguities therein resolved against the carrier— “ loss or damage” on the carrier's own road held to cover loss or damage to the merchandise itself, and not that arising jrom delay and a falling market— a requirement that notice be given, similarly restricted—measure of damages by reason of delay and a falling market.
    
    The Missouri, Kansas and Texas Railway Company of Texas accepted for transportation from points in Texas cotton consigned to Liverpool, Eng. The bill of lading issued for such goods was entitled as follows: “ The Missouri, Kansas & Texas Railway Company of Texas, and Wab, Hoosac Tunnel and Cunard Line ” It provided that the cotton was “To be carried to the Port (A) of Boston, Mass., and thence by Cunard Line to the Port (B) Liverpool, Eng.” The said bill of lading contained thirty-one conditions in three classifications, first, with respect to service until delivery at the port of Bo ton; second, with respect to service after delivery at the port of Boston and until delivery at the port of Liverpool; and, third, after delivery at the port of Liverpool. Under the first classification the conditions stated, so far as material, were as follows:
    “1. No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by causes beyond its control; or by floods or by fife; or by quarantine; or by riots, strikes or stoppage of labor; or by leakage, breakage, chafing, loss in weight, changes in weather, heat, frost, wet or decay; or from any cause if it be necessary or is usual to carry such property upon open cars.
    “2. No carrier is bound to carry said property by any particular train or vessel, or in time for any particular market, or otherwise than with as reasonable dispatch as its general business will permit. Every carrier shall have the right, in case of necessity, to forward said property by any railroad1 or route between the point of shipment and the point to which the rate is given.
    '*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. The amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the place and time of shipment under this bill of lading, unless a 1 iwor value has been agreed upon or is determined by the classification upon which the rate is based, in either of which events such lower value shall be the maximum price to govern such computation. Claims for loss or damage must be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than thirty days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event.”
    “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 c iuse 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 instrument was signed on behalf of the Missouri, Kansas and Texas Railway Company and on behalf of the ocean steamship company, viz., the Cunard line, severally but not jointly. Owing to a delay in transportation to the port of Boston the shipper of the cotton suffered, by reason of a falling market for the cotton at Liverpool, damages in a specified sum and-a further sum from a like cause in consequence of a delay in transportation from the port, of Boston to Liverpool.
    In an action brought by the shipper’s assignee against the Missouri, Kansas and Texas Railway Company to recover such damages, it was
    
      Held, that in the absence of a special contract a carrier who receives goods for shipment to a point beyond his own line is only obliged to transport the goods over his own line and deliver them to the next connecting carrier, and is not responsible for anything occurring after such delivery; ¡
    
    That no special contract will be inferred from the mere fact that the goods are i shipped or marked to a destination beyond the line of the initial carrier;
    That if, however, a special contract is made to carry or transport to a given point (which contract is usually expressed in the bill of lading) then the initial carrier receiving the goods and making such contract is liable as a common carrier for the transportation over the entire route to such point, and connecting carriers become his agents for the performance of the contract;
    That as the contract in the present case did not purport to be in any sense that of the Wabash and of the Hoosac Tunnel' railroads, which were the connecting roads between the terminus of the defendant’s line and the port of Boston, and as the bill of lading provided that the cotton was “To be carried to the Port (A) of Boston, Mass., ,and thence by' Cunard Line to the Port (B) Liverpool, Eng.,” the correct construction of the contract was that the defendant undertook to carry the cotton to the port of Boston, the Wabash and Hoosac Tunnel railroads being simply its agents, and that the Cunard line undertook to carry the cotton from the port of Boston to the port of Liverpool;
    That if there was any ambiguity in the contract-respecting the question whether the defendant’s responsibility for the' goods terminated when the cotton was delivered to the connecting railroad companies, or when it was delivered at.the port of Boston, such ambiguity should be resolved against the defendant;
    That the words “loss or damage,” contained in the 3d condition of the bill of lading above quoted, restricting the carrier’s liability to its own road or its portion of the through route, only included loss or damage to the cotton itself, and did not include loss sustained by the shipper through a falling market due to delay in transportation;
    That the words “ loss or damage,” used in that portion of said subdivision 3, requiring that written notice of claims for “ loss or damage be made promptly after the arrival of the property, should receive an interpretation similar to that given to the same words in the previous portion of the subdivision;
    That the defendant was, therefore, liable for the damage resulting to the plaintiff in consequence of the delay in transportation to the port of Boston, but not for the damage resulting from the delay in transportation from the port of Boston to the port of Liverpool;
    That in the case of injury to a shipper from a falling market, the damage is determined by computing the difference between the price at which the goods were actually sold and the price at which they could have been sold had the contract been performed. '
    
      Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Charles S. Haight [Everett P. Wheeler with him on the brief], for the plaintiff.
    
      W. Kintzing Post [Herbert L. Satterlee with him on the brief], for the defendant.
   Miller, J.:

This is a submitted controversy in which the plaintiff seeks to recover as damages the loss of a market caused by delay in the transportation of two consignments of cotton, one from Greenville, Tex., and one from Dallas, Tex., to Liverpool, Eng. It appears that the cotton was delivered to the defendant for transportation by the plaintiff’s assignors at said places, that the agreement therefor was expressed in bills of lading delivered by the defendant to said shipper, that the defendant transported the cotton without delay over its own line and delivered it in good season to the next connecting road, but that for some cause which is not. stated in the statement of agreed facts a delay occurred between said point of delivery and the port of Boston, and likewise between said port of Boston and Liverpool, for both of which delays damages resulted by reason of a falling market at Liverpool, for which the plaintiff claims the defendant is responsible under its contract. The bill of lading, so far as material, is as follows:

The Missouri, Kansas & Texas Railway Company of Texas, and Wab. Hoosac Tunnel and Cunard Line.
“ Received, at Greenville, Tex., from Dorrance, Cairns & Co. the following property, in apparent good order, except as noted (contents and condition of contents of packages unknown), marked, consigned and destined as indicated below:
“ Consignee and Destination —
“ Order
“ Liverpool, Eng.
“ Party to be notified —
' Cunningham & Hinshaw.”

Then follows a description of the articles by marks, numbers, number of bales'and weight, “To be carried to the Port (A) of Boston, Mg-ss., and thence by Cunard Line to the Port (B) Liverpool, Eng. (or so near thereto as ship may safely get, with liberty to call at any usual port of call) and to be there delivered as above consigned, or to another carrier on the route to destination if consigned beyond said port (B) upon payment immediately on discharge of the property, of the freight thereon, at the rate from Greenville, Tex., to Liverpool, Eng., of Ninety-five cents, United States gold currency, .per one hundred pounds gross weight and advanced charges.”

At the foot of the bill of lading, thirty-one conditions are stated in fine print, in three classifications, first, with respect to service until delivery-at the port of Boston ; second, with respect to service after delivery at the port of Boston and until delivery at the port of Liverpool; and, third, after delivery at the port of Liverpool. Under the first classification the conditions stated, so far as material, are as follows:

“ 1. No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto by causes beyond its control; or by floods or by fir'e; or by quarantine ; or by riots, strikes or stoppage of labor; or by leakage,, breakage, chafing, loss in weight, changes in weather, heat, frost, wet or decay ; or from any cause if it be necessary or is usual to carry such property upon open cars.
“2. No carrier is bound to carry said property by any particular train or vessel,., or in time for any particular market, or otherwise than with as reasonable dispatch as its general business will permit. Every carrier shall have the. right, in case of necessity, to forward said property by any railroad or route between the point of shipment and the point to which the rate is given.
“ 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. The amount of any loss qr damage for which any earner becomes liable shall be computed at the value of the property at the place and time of shipment under this bill of lading, unless a lower val-ue has been agreed upon or is determined by the classification upon which the rate is based, in either of which events such lower value shall be the maximum- price to govern such computation. Claims for loss or damage must be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than thirty days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event.”
“ 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 finé 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 instrument was executed in the following form: “ In witness whereof, the Agent, signing on behalf of the said, The Missouri, Kansas & Texas Railway Company of Texas, and of the said Ocean Steamship Company, or Ocean Steamer and her owner, severally, and not jointly, hath affirmed to two Bills of Lading all of this tenor and date, one of which Bills being accomplished, the others to stand void.

“ Dated at Greenville Tex this 27th day of Dec 1900
“ J. WALLER a. F. Agent.
“ On behalf - of carriers severally but not jointly.”

It is stipulated that the damages occasioned by delay in transportation to the port of Boston were $685, and that the damages occasioned by the delay over the entire route were $969.23.

Certain propositions respecting the obligation of common carriers are well settled by the decisions of the Federal courts and of this and many other States and may be stated without the citation of authority. In the absence of a special contract a carrier' who receives goods for shipment to a point beyond his own line is only obliged to transport over his own line and deliver to the next connecting carrier, and is not responsible' for anything occurring after such delivery. No special contract will be inferred from the mere fact that the goods are shipped or marked to a destination beyond the line of the initial carrier. If, however, a special contract is made to carry or transport to a given point (which contract is usually expressed in the bill of lading), then the initial carrier receiving the goods and making such contract is liable as a common carrier for the transportion over the entire route to such point, and connecting carriers become his agents for the performance of the contract.

The first question to be determined in this case, therefore, is: What did the defendant engage to do ? It is to be observed that the contract upon its face is the contract of the defendant and the “ Cunard Steamship Company,” as it is executed by.' the agent of the defendant on behalf of said defendant and steamship company severally. It does not purport in any sense to be the contract of the Wabash and the Hoósac Tunnel, the connecting roads between the terminus of the defendant’s line and the port of Boston, and it is plain that the purpose of writing in the words Wab. Hoosac Tunnel ” after the name of the defendant at the top of the bill of lading was merely for the purpose of indicating the connecting lines over which it was proposed to transport the cotton, as there were several different lines by which the defendant could have transported it if it so desired, but neither the Wabash nor the Hoosac Tunnel were parties to the contract nor in any way bound by it. . The contract of each arose only after it had accepted the goods for transportation over its own line. It being clear, therefore, that the contract, whatever it was, was the contract of the defendant and the steamship company, the question to be determined is : What was contracted to be done ? This is expressed in the phrase To be carried to the Port (A) of - Boston, Mass., and thence by Cunard Line to the Port (B) Liverpool, Eng.” There is no ambiguity about this expression. It is not a contract to forward merely. It is not a contract to carry to the terminus of the defendant’s line and there deliver to the next connecting carrier. This contract was prepared by the defendant and delivered to the plaintiff’s assignors, and if there were any ambiguity about it such ambiguity or uncertainty would have to be resolved against the defendant within the rule that the language of an instrument is to be construed against the person who proposes it rather than against the person who is invited to accept it. (Gillet v. Bank of America, 160 N. Y. 549, 555.) The defendant was responsible for the language used, and having expressly agreed to carry to a given point must be held liable as a common carrier for the transportation'of the goods to such point, except so far as its liability is clearly limited by the conditions which are a part of the instrument. Condition 12 (supra), in respect to the service until delivery at the port of Boston, makes it clear that the obligation.of the defendant terminated upon the delivery of the property to the steamship company at said port, and a reasonable construction of the contract requires us to hold that the defendant and the Cunard line severally agreed, the one to carry the cotton to the port of Boston and deliver to the latter, the latter to carry to the port of Liverpool and deliver to the consignee or to another connecting carrier if consigned beyond said port.

This brings us to the meaning of the words “ loss or damage,” as used in the 3d condition quoted (supra), because it is clear that if such words include injury to the shipper arising from delay, as distinct from loss of or injury to the property itself, the defendant has restricted its liability to its own line or its portion of the through route. The defendant contends that inasmuch as it is sought to be made liable for the acts of others, for which in the absence of special contract it would not be liable at common law, the conditions restricting such liability contained in such special contract should be construed liberally in its favor. It may be that this contract should not be construed as strictly against the carrier as the courts of this State have construed .contracts made by carriers limiting their common-law liability, for the reason that but for the contract the defendant would not be liable for the delay in this case, although the distinction between the liability imposed by this contract and any other contract of carriage is finely drawn. The obligation in each case arises from the contract, express or implied, to carry. In each case the liability as a common carrier is assumed upon the making of the contract, and is a common-law liability usually not expressed in the contract, and if a carrier expressly contract to carry to a given point, it would seem to be quite immaterial whether the route embraced other connecting lines or was- confined to its own line. But be that as it may, the defendant is responsible for the language used in this contract, and is at least subject to the rule declared in Gillet v. Bank of America (supra) that any uncertainty or ambiguity as to the meaning of the agreement

must be resolved in favor of the plaintiff, and it is quite clear that by subdivision 3 (supra) the defendant did not restrict its liability for injury to the shipper caused by delay.' Loss or damage to the property and injury to the shipper resulting from loss of market are quite distinct. In the 1st condition stated (supra) the defendant provided against all liability for loss of or damage to the property resulting from the causes stated. The use of the words “ thereof ” and “ thereto ” clearly limited the application of the words to the property itself, and although the words , “ thereof ” and “ thereto ” are not repeated in. the 3d subdivision (supra) it is quite clear that the words “ loss or damage ” are used in the same sense. The language is “ 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.” Manifestly the only loss or damage which would occur on its own road would be loss of or damage to the property itself. The loss or damage, resulting from a falling market occurs after the property has reached its destination. In order to give the condition the effect claimed by the defendant it is necessary- to interpolate after the word “damage” the words “from causes,” so that it should read “no carrier shall be liable for loss or damage from causes not occurring on its own road.” But it is contended that in any view the words “ nor after said property is ready for delivery,” etc., clearly restrict the defendant’s liability to the defendant’s own line. If the words “ loss or damage ” are held to include injury to the shipper from loss of market, then, if the phrase quoted is given its literal meaning, it would provide against all liability for such loss or damage Oven though occasioned by a cause occurring on the defendant’s road, because, although the cause occurs on the defendant’s road, the loss or damage does not occur until after the property has left the" defendant’s road. These observations make it clear that a reasonable construction must be adopted, and the meaning of the words “loss or damage” as thus used is clearly indicated by the following . sentence, “ the amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the place and time of shipment,” etc., because it is clear that the only loss or damage in determining which the value of the property at the place and time of shipment could be a factor is loss of or damage to the property itself. In the case of injury to the shipper arising from a falling market, the damage is determined by computing the difference between the price at which the goods actually were sold and the price at which they could have been sold had the contract been performed. The value of the property at the place and time of shipment does not enter into the problem in any way.

There is another view which tends to support the contention of the plaintiff. By this contract two carriers engaged to transport the property to Liverpool, each being responsible for the transportation over a certain portion of the route, the defendant from the point of shipment to the port of Boston, and the steamship company from Boston to Liverpool, and, as we have said, by this contract the connecting roads between the terminus of the defendant’s line and Boston were its agents, and the word carrier ” as used in the condition under consideration can reasonably be construed as referring to the contracting carriers, especially in yiew of the xpression “ occurring on its own road or its portion of the throughs route.”. The defendant’s portion of the through route was from Greenville, Tex., to Boston, Mass., and in this view it becomes immaterial whether the words loss or damage ” are limited to loss of or injury to the property. We prefer, however, to rest our decision upon the ground that the words “ loss. or damage,” when construed in reference to the context, do not include the loss which the plaintiff seeks to recover in this action.

The defendant contends that claim for loss or damage was not made in writing to the agent at point of delivery promptly after arrival of the property, * * * or after due time for the delivery thereof.” It appears that due time for the. delivery of the cotton at Liverpool was February fourteenth. It in fact arrived in different lots, as follows: Fifty bales on February twenty-second, fifty-one bales on March fifth, and ninety-nine bales on May first. On the twenty-sixth of April the consignee of the cotton at. Liverpool notified the Cunard Steamship Company by letter that the cotton was overdue and that the delay meant serious loss, and on the nineteenth of June made a formal claim in writing for the amount of the damages claimed to have been sustained. It is unnecessary to determine whether this was a sufficient compliance with the terms of the contract, because the words “ loss or damage,” as used in the portion of subdivision 3, relating to notice of a claim, must be construed as used in the same sense as the words “loss or damage” in the 1st sentence of the paragraph, and as we .have held that said words do not include the damage suffered in this case, there is no- provision in the contract requiring notice thereof to be given; the reason for requiring prompt notice of loss of or damage to the property .itself is apparent, for in such case it is obvious that prompt notice is required in order to enable the defendant to investigate the extent of the injury and the facts relative thereto, but in the case of a claim for damage to the shipper resulting from loss of market occasioned by delay, the carrier does not need to be promptly notified in order to ascertain the facts. The market quotations are preserved and can be ascertained at any time, and records must be kept by the different lines over which the property is transported, so that it should be possible at any time to ascertain the time of receipt by any given carrier and the delivery by it to the next succeeding carrier.

For these reasons the plaintiff should have judgment in accordance with the stipulation for .the sum of $685, with interest from February 14,-1901, without costs.

Hirschberg, P. J., Bartlett, Woodward and Rich, JJ. concurred.

judgment for- plaintiff for the sum of $685, with -interest from February 14, 1901, without costs, in accordance with the terms of the submission.  