
    Franklin Woodruff et al., Resp’ts, v. Frederick C. Havemeyer et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 7, 1887.)
    
    1. Common carriers—Shipping—Discharge op cargo.
    Where parties to a contract of shipping made a special agreement as to the mode of delivery, and fixed the amount which the shipper or consignee should pay for landing and wharfingers charges, in case the car riers elected to discharge the sugars on the wharf at Brooklyn, such agreement is binding upon such consignees and they have no right to insist that for their convenience the sugar should be delivered from the side of the ship, and cannot escape paying the fees by offering to take it off in lighters..
    2 Same—Parties.
    There is such a privity between the wharf-owner and the carriers as will support an action by the former to recover the stipulated compensation
    
      3. Same—Laws 1872, chap. 320.
    Chapter 320, Laws 1872, allowing owners of wharfs, etc., to charge five cents per ton on all goods remaining on the wharf after the expiration of twenty-four hours, does not prohibit the owner of a private wharf from entering into a contract, for the landing and deposit of goods upon his wharf upon such terms as may be agreed upon between himself and the owner of the goods, nor can, it be construed as requiring him to store goods for any period of time without compensation.
    Appeal from judgment of supreme court, general term, second department.
    The plaintiffs were owners of certain wharves, piers and warehouses at the foot of Joralemon street, in the city of Brooklyn, within the port of New York, erected on land under water within the boundaries mentioned if chapter 156 of the Laws of 1848 and chapter 254 of the Laws of 1860. The defendants were owners and consignees of certain cargoes of sugar imported from Havana by Ward’s line of steamers, between November, 1880, and November, 1882, which, upon the arrival of the vessels transporting the same, were landed by the carrier upon the plaintiff’s wharves, and were, within twenty-four hours thereafter, delivered by them to the defendants. The sugars were transported from Havana to New York under bills of lading by which the carrier agreed to carry them from Havana to the port of New York, “to be there delivered, within reach of the steamship’s tackles, unto Messrs. Havemeyer and Elder, or his or their assigns,”’upon payment by the consignees of the freight and primage specified. This primary clause in the bill of lading was followed by a provision out of which, and the action of the carriers thereunder, arises the present controversy. That provision is as follows: “It is expressly stipulated that the articles named in this bill of lading shall be at the risk of the owner, shipper or consignee thereof, as soon as delivered from the tackles of the steamer in the aforesaid port of New York (steamer has option of discharging cargo at New York or Brooklyn, consignees of cargo to pay charges thereon as expressed in the margin), and they shall be received by the consignee thereof, package by package, as so delivered,” etc. In the margin of the respective bills of lading is this printed notation: “Landing and wharfinger’s charges, including storage on wharf not exceeding six days, 17 cts. per hhd. lo cts. per t’ce, 8 cts. per box, and 4 cts. per bag, commencing immediately upon delivery from steamer.” The vessels on which the sugars were shipped carried general cargoes; and on reaching New York stopped, in the first instance, at the regular pier of the company in New York, at the foot of Wall street, and there discharged light cargo other than sugar, and thence proceeded, under the option reserved in the bill of lading, to the wharves of the plaintiffs in Brooklyn, and there delivered the sugars. The defendants were ready with lighters to receive the sugars from the vessels, and demanded that they should be delivered directly into the lighters. They were, however, delivered upon the wharf, and not directly into the lighters, for the convenience of the steamers in sorting the defendants’ sugars from other goods and sugars on the vessels; the cargoes in most cases including other sugars than the defendants.’ This action is Brought to recover the landing and wharfinger’s charges at the rate expressed in the hills of lading.
    
      John E. Parsons, for app’lts; S. P. Nash, for resp’ts.
    
      
       Affirming 35 Hun, 668, mem.
      
    
   Andrews, J.

The defense to this action on the merits, if it' has any foundation, rests upon the assertion by the defendants of the right to disregard and repudiate their written contract contained in the bills of lading to pay landing and wharfinger’s fees at the rate specified in •the margin of the bills, although the carriers exercised their option to discharge the sugars in Brooklyn. It is manifest 'that this defense cannot be maintained upon the ordinary and general rules applicable to contracts. The option reserved by the carrier to discharge the sugars in Brooklyn contemplated a delivery upon a wharf in case the option was exercised, as is shown by the notation in the margin of the bills. It is inferable from the agreed facts that the option was reserved by the carriers for their convenience in unloading and assorting cargo. At all events, the shippers, by the bills of lading, assented to this mode of delivery, and they had no right to insist that for their convenience the sugars should be delivered from the side of the ship. The parties to the contract not only made a special agreement as to the mode of delivery, but they fixed, by the same agreement the amount which the shipper or consignee should pay for landing and wharfinger’s charges in case the carriers elected to discharge the sugars in Brooklyn. It is plain that this agreement also was within the general competency of contracting parties, and was binding upon the defendants, unless they are freed from liability to perform their contract upon some special ground.

It is claimed that, assuming the contract was valid and enforceable between the carriers and the defendants, there was no privity between the plaintiffs and defendants which will support an action by the plaintiffs to recover the stipulated compensation. It is unnecessary to invoke the doctrine of Lawrence v. Fox (20 N. Y., 268), in order to support the judgment below; and it is not important to consider whether the doctrine of that case is applicable. The plaintiffs came into possession of the sugars through a delivery by carriers duly authorized by the shippers and consignees to make delivery on such wharf in Brooklyn as the carriers might select, subject to the payment by the consignees of wharfinger’s fees at a specified rate. The receipt of the cargo on the wharf was in legal effect a service rendered by the plaintiffs for the defendants, upon the employment of the carriers duly authorized to contract in behalf of the defendants, for the service at the rates agreed upon in the bill of lading. _ The defendants were parties to the bills of lading. The plaintiffs received the goods under the terms expressed therein, and thereby became entitled to enforce the contract made for the benefit of such wharfinger as should render the contemplated service. In general, a bill of lading is binding upon and protects all persons who by means of or under it become the owners or custodians of the goods. See Whitworth v. Erie R. Co., 87 N. Y., 413; Morse v. Pesant, 41* N. Y., 16; The Delaware, 14 Wall., 579.

But the defendants mainly rely for their defense upon the act, chapter 320 of the Laws of 1872, entitled “An act to amend an act in relation to the rates of wharfage, and to regulate piers, wharves, bulkheads and slips in the cities of New York and Brooklyn, passed May 6, 1870.” The first section of the act prescribes the rates of wharfage and dock-age within the cities of New York and Brooklyn. Wharfage is a charge against a vessel for lying at a wharf, and is not a charge for caring for the goods. The plaintiffs are not seeking to recover wharfage, and the first section of the act has therefore no direct bearing upon the present controversy. But it is claimed that by the second section the defendants had the right to have the sugars remain on the plaintiff’s wharf for a period not' exceeding twenty-four hours without charge. The second section is as follows: “It shall be lawful for the owners or lessees of any pier, wharf or bulkhead within the cities of New York and Brooklyn to charge and collect the sum of five cents per ton on all goods, merchandise and materials remaining on the pier, wharf or bulkhead owned or leased by him for every day after the expiration of twenty-four hours from the time such goods, merchandise and materials shall have been left or deposited on such pier, wharf or bulkhead, and the same shall be a lien thereon.” It will be observed that the section does not in terms prohibit wharfingers from entering into special contracts for the use of their wharves for the storage or deposit of goods thereon during the first twenty-four hours. It simply declares it to be lawful for owners or lessees of wharves or piers to charge the rate specified upon goods remaining thereon more than twenty-four hours. The public wharves in New York and Brooklyn are, in general, extensions of public streets, and the second section of the act may have been enacted for the protection of wharfingers on the public wharves against the annoyance and obstruction which might be occasioned by the accumulation of goods, merchandise and materials thereon, and to furnish a motive to the owner of property for its prompt removal. This view is quite consistent with the course of legislation and the decisions. But, however this may be, we think the statute cannot be construed to prohibit the owner of a private wharf from entering into a contract for the landing and deposit of goods upon his wharf upon such terms as may be agreed upon between himself and the owner of the goods, nor can it be construed as requiring bim to store goods for any period of time without compensation. Assuming that such a regulation would be within the competency of the legislature, as to which we express no opinion, nevertheless, the intention of the legislature to exercise such an exceptional power cannot be inferred from the language of the act of 1872. The act can have scope and effect without imputing to the legislature the design attributed to it by the defendants. See Wetmore v. Brooklyn Gaslight Co., 42 N. Y., 384.

We tbinTr the plaintiffs were entitled to maintain the action, and that the judgment should be affirmed.

All concur.  