
    McGregor & Co. v. Kilgore.
    Stipulation in a bill of lading that the shipper, in case of low water, may reship in other craft, does not vary his obligation to deliver safely. Such stipulation is for his benefit, and continues his liability if resorted to.
    Where the shipper is held liable for injury of the goods shipped, the rule of damages is the value of the goods at the place of delivery.
    This cause was adjourned in Hamilton county. It came before the court upon a special verdict. The action was case upon a bill of lading, dated July 5, 1832, for certain parcels of merchandise consigned to the plaintiffs, shipped on board the steamboat Chesapeake, to be delivered at Cincinnati *in good order (the [359 danger of the river alone excepted); “ but in case of the water not admitting the boat to proceed to Louisville, the owners of the goods to pay the expense of reshipping to that place from the point where they are reshipped, and the captain agrees they shall be forwarded without any delay.” Breach, that through the carelessness and negligence of the defendant, the goods were lost.
    Plea, not guilty; notice that the low water would not permit the boat to go up to Louisville, and, therefore, the goods were landed at Trinity, near the mouth of the Ohio, and were injured after they were so landed. The jury returned a special verdict, finding:
    1. The execution of the bill of lading, the shipment of a cask of cutlery to be delivered in Cincinnati according to the bill of lading, and the delivery of the cask in an injured state at Cincinnati.
    
      2. That the amount of the injury upon the sterling cost and insurance is.............................................$419 24
    The amount exclusive of insurance........................... 389 24
    The amount, adding sixty per cent, to the sterling cost...622 78
    The amount, predicated on the value at Cincinnati, and
    the proceeds of sale................................•.........789 58
    3. That the said cask of cutlery was landed at Trinity, at the mouth of the Ohio, and left in charge of the defendant — the boat having returned to New Orleans — was placed under a temporary shed erected for the purpose, near the river, and several days afterward, while the boat hands were attempting to remove it to another place of deposit adjoining, the cask being large and heavy, slipped away from the workmen and rolled into the Ohio river, and damaged the goods by the wetting.
    And if upon these facts the court is of opinion the law arising is with the plaintiffs, they find the defendant guilty, and assess the plaintiff’s damages to the amount of either of the sums returned, which in law is the true rule of damages, with interest to be counted and added as in law, is right. But if the court shall be of opinion that, upon the facts there is no legal right in' the plaintiff to recover, then the jury find the defendant not guilty. It was a conceded matter at the trial that the goods were landed because the water in the Ohio river was too low for the Chesapeake to ascend to Louisville.
    360] *A(ter the goods were landed at Trinity, the defendant wrote to the plaintiffs notifying them of the fact, and asking advice as to the shipment up. The following answer was sent to the letter:
    “ Cincinnati, August 14, 1832.
    “ Capt. Kilgore — Dear Sir: Your favor of the - instant,
    came duly to hand. You wish to know if you shall forward our freight to Louisville at fifty cents per one hundred pounds.
    “We do not wish it sent at such a high freight. There is now a rise of water which will enable any of the common boats to get to Louisville with considerable freight on board. Our loading is of such a heavy nature as will not allow the present high rates of freight. You will please to send it up as soon as you think the freight is at as low a rate as it will be at before the fall rise — say, twenty or twenty-five cents per one hundred pounds to Louisville. We are not very much in want of it. We hope there is no additional expense accrued at Trinity on the goods.
    “We understand there was some of our freight sent to Louisville some time ago — say, when the Chesapeake arrived last. We have not yet received it, nor have we heard from it. We hope, however, that the present rise of water will enable you to forward all the freight at fair prices. You will please engage it all the way to Cincinnati if you can.
    “ Respectfully, your most obedient servants,
    “ J. McGregor & Co.”
    E. S. Haines, for the defendant, insisted:
    1. That inasmuch as by the bill of lading the defendant was allowed the privilege of reshipping, in the event of. low water, and by the custom of the river he had a right to land and keep goods on land until opportunity for reshipment occurred, the landing at Trinity terminated the liability of the defendant as a common carrier.
    2. That on the landing of the goods at Trinity, the captain of the boat became the agent of the owner,.and liable only as a ware-, houseman, because the preservation of the goods thenceforward was for the convenience of the owner only. 4 Durnf. & E. 581; 12 Johns. 232, 233; 8 Taunt. 443; Story on Bail. 272, 343; 3 and 6 Cowen, 266; 7 Cowen, 497; 8 Cowen, 233; 8 Serg. & Raw. 552, 553.
    *3. In case the defendant is liable as a carrier, he is only [361 so liable to the amount of the invoice price, or the price at the port where the goods were shipped, without regard to the price at the place of delivery. 3 Caine, 219.,
    B. Storer, contra,
    cited Story on Bail. 359, 329; Abbott on Ship. 259; 1 Wils. 282; 1 Doug. 278; 8 Johns. 164; 3 Caine, 219; 14 Johns. 132; 1 Wash. 6; 6 R. 17; Abbott, 3 pt. chap. 3, sec. 10; 2 Molloy, ch. 2, sec. 14; 3 Kent, 175; 10 Johns.; 14 Johns. 171; 15 Johns. 38; 12 S. & R. 183; 1 Pet. 177.
   Judge Wright

delivered the opinion of the court:

It, was not contended on the trial before the jury, nor is it now insisted, but the water in the Ohio river was so low when the Chesapeake arrived at its mouth, as not to admit of her proeeeding to Louisville. There was no dispute then, nor is there any now, that the letter in evidence was written by the plaintiffs to the defendant, and received by him at Trinity after the goods were landed there. I therefore take these two facts as a part of this case, though not included in the finding of the jury.

The bill of lading was a contract to carry from New Orleans to Cincinnati, and deliver to the plaintiffs there in good order, with privilege to the carrier in case of low water to reship for Louisville in some other craft, and charge the increased expense of such reshipment to the consignee. The first point presented, it appears to us, is, did the landing of these goods at Trinity in order for their reshipment, put an end to the defendant’s connection with them as carrier under the contract, and convert him into a warehouse keeper and forwarder ? There seems no necessity for inquiring into the custom of the river when goods are transhipped, to land and protect them by temporary warehouses, if none other can be had, until a suitable craft arrive to take the lading up the river. The bill of lading gave the carrier the privilege of forwarding the goods on other craft than that in which they were shipped in one event, and it seems to us the right to land may bo conceded as incident to the shipment without at all affecting the questions before the court. It was but a privilege to the carrier, in the execution of his contract to convoy and deliver, inserted for his own benefit, to secure him the advantage of as great a por362] tion of the freight as ho could earn, and to throw *upon the owner any increase of expense. The relation of carrier continues from the shipment of the goods until their arrival at their destined port and delivery, unless that relation has been interrupted by some act of the owner or consignee. In that possible view of the case the letter alluded to was read in evidence. It is now claimed that that letter constituted the defendant the agent of the plaintiffs, and put an end to his duties as carrier. There is nothing in the case, and there was no evidence on the trial, to show that this letter was received by the defendant before the accident to the goods. If, therefore, the receipt of the letter was admitted to affect what the defendant urges, a state of things is not shown in this case in which the letter can bear upon the injury. The utmost that could be claimed for this letter, if received before the injury, would be to exonerate the carrier from injury while the goods were detained, under the letter, for lower rates of freight. It can not rea.eh back to influence an injnry which the goods received immediately after they were landed, and before the letter was received, or perhaps written. The defendant had these goods, as carrier, when they were injured, and is subject to the law of carriers. “A common carrier warrants the safe delivery of goods in all but the excepted cases of the act of God and public enemies.” 10 Johns. 7. carrier, in taking freight, is bound to use sound and proper hands and machinery for lading and unlading, and the safe handling and removing the goods; and if loss ensue from the failure in any particular the carrier must bear it. Abbott, 259; 1 Wil. 282 ; 1 Doug. 278. The injury in this chase resulted from the want of machinery to remove heavy aticles, or the carelessness, inattention, or want of strength in the hands employed.

It remains, then, only to inquire into the proper rule of damages in the ease. The goods were delivered at Cincinnati in an injured condition. The carrier earned full freight for their transportation. It would seem to he the dictate of natural justice that the person liable for their safe delivery should make good to the owner the injury they sustained while under his care and control. The owner was entitled to the goods at Cincinnati in their perfect state. But for the act of the defendant he would have had them in that condition. The carrier, in case he deliver the goods at the port of delivery, earns, and is entitled to demand full freights, notwithstanding they have been partially injured, and the consignee must look to his *bill of lading for indemnity. In [363 New York the rule is established that the measure of damage is the value of the goods at the port of delivery. 15 Johns. 38; 14 Johns. 171. The Supreme Court of Pennsylvania, upon full examination, held it best to remove from the carrier all temptations to fraud, and that was best done by making him liable for the value of goods lost at the place of delivery, and established that as the rule of damages in such oases, Founded upon authority, general convenience, and good policy. 12 S. & R. 186. These authorities are not shaken by those cited by the defendant. We think this is obviously the rule of law and justice. The jury have returned two valuations looking to this point.

1. The value, adding sixty per cent, to the sterling cost, as the iisual mercantile estimate in Cincinnati, to cover the charges, freight, and insurance from Liverpool.

2. The actual value of the goods in Cincinnati, deducting therefrom the proceeds of the goods, sold in their injured condition.

Which of these furnishes the rule of damages is the question? The first is the usual mode of ascertaining the net cost of such goods in Cincinnati. In the absence of other evidence, that would be taken as the value of the goods. But when the actual value is found, the supposed or presumed value yields. That is the case ■here, the jury have assessed the damages, as predicated on the actual, as well as the supposed value, the actual value measures the real injury, and is the rule of damage.

Judgment for the plaintiff for that sum, with interest.  