
    Julius Robertson, Resp’t, v. The National Steamship Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 10, 1893.)
    
    1. Contract&emdash;Breach&emdash;Deviation&emdash;Usage.
    Defendant undertook to transport certain goods from Havre to London and from there to New York by certain named vessels, the bill of lading exempting defendant from perils of “ land transit of whatsoever nature or kind.” The vessel named'from Havre was owned by the London & Southwestern Railroad Co., whose vessels only ran to Southampton, and the goods were taken thence by rail to London. No vessels of said railroad or defendant ran direct to London, and this mode of doing the business was well known and had continued for years. The goods in question were taken by that route, and on arrival at New York were found to be damaged. Held, that the contract of carriage must be deemed to have been made with reference to this custom,, and that there was no deviation which would make defendant liable as an insurer for the damage to the goods.
    2. SAME.
    The persons from whom defendant received the goods did not contract as agents or disclose any agency. Held, that defendant had the right to treat them as principals, but if they were in fact only agents for the person from whom plaintiff subsequently purchased the goods, he was affected by the same knowledge which they possessed as to such custom, and was bound thereby.
    (Gray, J., dissents.)
    Appeal from judgment of the New York superior court, general term, reversing judgment in favor of plaintiff, entered upon decision of a judge at special term.
    
      John Chetwood, for app’lt; Lewis Sanders, for resp’t.
    
      
       Reversing 40 St. Rep., 694.
    
   Earl, J.

In June, 1889, the defendant had a line of steamers running between London and New York. It received goods at Havre in France for transportation to New York by way of London. It transported such goods from Havre to Southampton on board of steamers, and from that place to London by railroad, where they were transshipped to its steamships, to be carried to New York. The steamships running between Havre and Southampton and the railroad from Southampton to London were owned and operated by the London k Southwestern Railroad Company. The agents representing the defendant at Havre, on the 8th of June, 1889, received from Isabella k Munster forty-five packages of merchandise and issued to them a bill of lading in which they acknowledged the receipt of the merchandise to be forwarded “ by the steamer Wolf to London, and to be there transshipped in and upon the steamship called Canada * * * lying in the port of London and bound for New York, with liberty to sail with or without pilots, to call at Havre, Queenstown, Southampton, Plymouth, or any other port or ports, and to tow and assist vessels in all situations and to all ports, and failing shipment by said steamer, then by following steamer of this line, for which the goods shall arrive in time.” The bill of lading contained stipulations exempting the defendant from various perils, and among them from perils of “land transit of whatsoever nature or kind.” Isabella & Munster appeared in the bill of lading as principals, not as agents. The merchandise, having been shipped on board the steamer Wolf was carried to Southampton and from thence by rail to London, where it was transshipped to the steamer Ganada, and upon its arrival in New York it was found to be damaged. The plaintiff, who was the consignee, and who had become the owner of the merchandise, brought this action to recover against the defendant for the damage done to it, and he recovered on the sole ground that the defendant became an insurer of the merchandise, because it did not transport it from Havre to London on the steamer Wolf and that thus there was a deviation from the route stipulated by the transportation by rail from Southampton.

It cannot be disputed that if there was such a deviation as is claimed the defendant became an insurer, and thus responsible for all loss and damage to the merchandise, even from unavoidable casualty. Maghee v. Camden & Amboy R. R. Co., 45 N. Y., 514.

But we do not think there was any deviation from the mode of transportation prescribed by the contract made between the parties. If we read the shipping bill alone it is not entirely certain that the merchandise was to be transported from Havre to London all the way by water on board the steamer. The language in the bill of lading is, “ to be forwarded by the steamer Wolf to London,” and in a real sense goods received on board the Wolf may be said to have been forwarded by that steamer to London by carrying them to Southampton, and then sending them by rail to London. The bill seems to provide for a carriage upon land, as it exempted the defendant from loss or injury from perils by land transportation of any kind, and the only land transportation upon this route was from Southampton to London. Thus it appears that the shippers and the defendant, when they made the contract, contemplated not only a carriage upon water, but upon land also.

But when the circumstances surrounding the making of the contract for the carriage are considered, it becomes entirely plain that the parties contemplated a contract for a carrriage by the Wolf to Southampton, and thence by rail to London. The London & Southwestern Railroad Company had a regular line of transportation from Havre to London, by steamer to Southampton and thence by rail to London, and for that purpose they had three vessels, making three trips weekly between those points, of which the Wolf was one. Those vessels never went further than Southampton, and the London & Southwestern Railroad Co. never carried any goods by water to London, and neither did the defendant, and the business had been carried on this way for many years, and the mode of doing it was notorious and well known. It was advertised in the newspapers at Havre, and was specified in way bills used in Havre by the agents of the London & Southwestern Railroad Company in the transaction of its business. The mode of doing the business was such, and so open and notorious,, that it must have been known generally at Havre, and particularly by persons there dealing with the agents of the defendant and of the London & Southwestern Railroad Company. It must be assumed that the contract between the parties was made with reference to this well-known usage, and it is binding upon the shippers just as if written in the bill of lading. In this particular case the proof of the usage does not contradict the bill of lading, but is simply explanatory of it. Hostetter v. Gray, 11 Fed. Rep., 181; Lowry v. Russell, 8 Pick., 360; Phillips on Ins. (5th ed.), § 980. ■ In Lowry v. Russell, it was held that a “ bill of lading, like other contracts, is to be construed according to the intention of the parties. Usage of trade is always presumed to be within the knowledge of the parties, and their contracts are supposed to be made with reference to it.”

But it is said that the owner of this merchandise was J. Kalmes, Jr., living at Hamburgh; that it does not appear that he made the contract at Havre; that he cannot be supposed to have known the usage, and that he cannot, therefore, be bound thereby, and that as to him it cannot be read into the contract of transportation. There are four complete answers to this position: (1) If Kalmes was the owner and shipper of this merchandise it was incumbent upon him to show that he was ignorant of this notorious and uniform usage. Johnson v. DePeyster, 50 N. Y., 666. (2) It does not appear that he owned this merchandise at the time the contract for transportation was made. In the bill of lading Isabella, & Munster are described as the shippers from whom the merchandise was received, and with whom the contract for its transportation was made. They did not contract as agents, or, so far as the record shows, disclose any agency. After the bill of lading was issued to them they indorsed it to another party, and that party indorsed it to Kalmes, and it appears by the invoice of the, goods obtained from the custom house and proved upon the trial., that the plaintiff bought the merchandise of Kalmes at Hamburgh,, on the 12th of June, four days after the bill of lading was issued to Isabella & Munster. It appears, therefore, prima facie that Isabella & Munster were the owners of the goods, and that Kalmes became the purchaser from them by indorsement and assignment of the bill of lading. (3) But if Isabella & Munster were not the owners they made the contract as principals, disclosing to the defendant no agency, and giving up no principal. Therefore, the defendant has the right to treat them as principals, and the contract, as to its force and effect, must be construed precisely as if they were principals and not agents. (4) But if we assume (which is the only other alternative) that they were the agents of Kalmes and made the contract really for his benefit, he being the owner of the merchandise, then he is affected by the same knowledge which they possessed, and if the law attributes knowledge of this usage to them, at the time they made the contract for their principal, then the same knowledge must be attributed to him, and binds him.

Therefore, in any view that can be taken of this case, if the parties when they entered into this contract of carriage did it with knowledge of this uniform and notorious usage, then the owner or owners of the merchandise, and the plaintiff, who claims under him or them, are bound by it, and there was no deviation from the contract which makes the defendant liable as insurer for the damage to the goods.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.

All concur, except Gray, J., dissenting.  