
    The Steamboat Jonas Powell v. Samuel Thompson.
    The first section of the water-craft law of this state (4 Cur'sten’s Stat. 3399), which provides, among other things, “that all steamboats, etc., shall be liable, etc., for damages arising out of any contract for the transportation of any goods,” etc., applies to special contracts for the transportation of goods, in part on board of a steamboat, and in part by other means, to a place beyond the line of its navigation, as well as to contracts for trans- - portation wholly on board the steamboat to places upon its line of navigation. ' • .
    Error to the court of common pleas of Morgan county. Reserved in the district court.
    
      The steamboat Jonas Powell, plying regularly between Zanesville, Ohio, and Parkersburg, Virginia, by her clerk, made the following contract, at the date therein named:
    “ The steamer Jonas Powell received for transportation, in good order, from S. Thompson, the following articles, which are to be delivered without delay, to consignees as per margin below. Freight to Philadelphia, 85 cts. per 100.
    “Dated at McConnellsville, April 19, 1861.
    
      “ Marks. Articles.
    
    “ S. Thompson, Phil. Care of Eplar & Cress.
    54 Bbls. Eggs. 3930 doz.
    Weight, 7020.
    . “ D. H. Mortley, Clerk."
    
    Thompson, the plaintiff below, claiming that the eggs were not delivered until they were spoiled from unnecessary lapse of time, filed his petition in the common pleas against the boat to recover damages for the loss consequent upon the delay in delivery, and caused the seizure of the boat under the water-craft law.
    *On behalf of the defendant an answer was filed, stating:
    That the defendant entered into the contract set forth in the bill of lading, a copy of which is annexed to the petition, and not otherwise. That the defendant did not undertake to carry the eggs in the boat to Philadelphia, but, as the plaintiff well knew, did undertake to carry them on the boat to Parkersburg, in the State of Virginia, and there place them in the care of the agent of the Baltimore and Ohio Railroad company to be by that company, with reasonable diligence, transported over the Northwestern Virginia Railroad, then in possession of the Baltimore and Ohio Railroad Company, and over the Baltimore and Ohio Railroad to Baltimore, in the State of Maryland; and thence through the city of Baltimore, by railroad, to the depot or southern terminus of the Philadelphia, Wilmington and Baltimore Railroad; and thence by the Philadelphia, Wilmington and Baltimore Railroad to Philadelphia, in the State of Pennsylvania, to which city the eggs were consigned. That the eggs were safely, securely, and without delay, on, and immediately after the 19th of April, conveyed by said steamboat to Parkersburg; and thence, safely, securely, and without delay, by the Baltimore and Ohio Railroad Company, over the Northwestern Virginia Railroad, and over the Baltimore and Ohio Railroad to tbe city of Baltimore. That, on the 19th of April, 1861, a state-of war existed between the United States of America and an organized band of armed rebels and traitors, enemies of the United States and its government, then investing the city of Washington, and threatening its capture and destruction. That on that day, for the purpose of preventing the passage of the troops of the United States to the city of Washington, there to be used for the defense* thereof, the said rebels and traitors, enemies of the United States,, tore up and destroyed the railroad track connecting the depot of the Baltimore and Ohio Bailroad with the depot of the Philadelphia, Wilmington and Baltimore Bailroad, and burnt and destroyed sundry of the bridges on the Philadelphia, Wilmington and Baltimore Bailroad, between Havre de Grace and Baltimore and thereby prevented the passage of freight through the city and over that part of the Philadelphia, Wilmington and ^Baltimore Bail-road lying south of the Susquehanna river and said town of Havre de Grace, leaving the Philadelphia, Wilmington and BaltimoreBailroad uninterrupted from the northern bank of the Susquehanna,, at the town of Perryville, opposite Havre de Grace, to Philadelphia.. That this part of the road was thereafter taken possession of by the-armies of the United States for the purpose of being exclusively used and occupied for the transit of troops and arms and munitions-of war of the United States. That upon the arrival of the eggs in Baltimore, whilst said railroads were thus interrupted, the agents-of the Baltimore and Ohio Bailroad applied to the officer of the-United States having command at Perryville, and also commanding-the Philadelphia, Wilmington and Baltimore Bailroad, for permission to send its Philadelphia bound freight, including the plaintiff’s-eggs, over the Philadelphia, Wilmington and Baltimore Bailroad from Perryville to .Philadelphia, which permission was refused;, and thereupon the eggs were sent by the only other usual and practicable route; that is to say, by sea, to Philadelphia, and delivered to-the consignee in Philadelphia, in as good order as such articles could, be, after that lapse of time. That no unreasonable delay occurred* in the forwarding and transportation of the eggs, nor was the defendant or its master, owners, or employes guilty of any carelessness or- negligence in that behalf.
    To this answer Thompson replied: That it was the agreement: between the plaintiff and the defendant that the eggs described in the plaintiff’s petition should be transported by the defendant to* Philadelphia, but the plaintiff'avers that it was not the agreement that they should be transported by way of Parkersburg, and thence -over any particular railroad route. That it was not the agreement that the eggs should be transported ‘ over the Northwestern Virginia Railroad, then in possession of the Baltimore and Ohio Railroad Company, and over the Baltimore and Ohio Railroad to Baltimore, in the State of Maryland; and thence, through the city of Baltimore, by railroad to the depot, or southern terminus of the Philadelphia, Wilmington and Baltimore Railroad; and thence, by said last-named road, to Philadelphia, the place to *whick 'the eggs were consigned. That it is not true that the eggs were .■safely, securely, and without delay, on and immediately after the 19th of April, conveyed by said steamboat to Parkersburg, and thence safely, securely, and without delay, by the Baltimore and Ohio Railroad Company, over the Northwestern Virginia Railroad, and over the Baltimore and Ohio Railroad to the city of Baltimore. That it is not true, as alleged in said answer, that on the 14th day of April, 1861, a state of war existed between the United States of America ■and an organized band of armed rebels and traitors, enemies to the United States and its government, and that such traitors were investing the capital of the country, and threatening its capture and destruction. That it is not true, as alleged in said answer, that any railroad bridges were torn up, burnt, or destroyed by armed traitors ■ on any route necessary to be employed by the defendant in transporting the eggs in pursuance of the contract between the parties. That the defendant was not hindered from the delivery of the eggs by reason of any act of an enemy or the enemies of the United .States. That it is not true that the defendant was hindered from the •delivery of the eggs by the act of Major-General Patterson, or any other person acting under and by virtue of any order of the president or government of the United States. That even after the arrival of the eggs at Baltimore, they were not sent speedily, safely, .and securely to Philadelphia, as averred in the answer; but that unreasonable delay did occur in the forwarding and transportation of the eggs, and that such delay was caused by the negligence of the masters, owners, and employes of said boat, the defendant, and from no other cause whatsoever.
    Upon the issues thus joined, the case was tried to a jury. Exception was taken by the defendant to the refusal of the court to charge the jury as requested, and to the charge given. The verdict being for the plaintiff, the defendant moved for a new trial, and in arrest of judgment. These motions were overruled and judgment entered.. To reverse the judgment a petition in error was filed in the district ■ court and reserved for decision in this court. The record sets out - in full all the evidence, and also the charge requested and the charge *given to the jury; but.as they are voluminous, it is not deemed necessary to state them at length. The points made in the record and determined here on error, appear in the opinion of the court.
    
      Goddard & Bunker, for plaintiff in error:
    1. The contract sued upon is one not contemplated by the statute • charging the craft in rem.
    
    The contract set forth and the breach do not show that the damage to the plaintiff was occasioned, or grew out of that contract;., and beyond all question, this contract, so far as it contemplated any act, or responsibility, beyond Parkersburg, was executory, and one • which can not be enforced against the craft.
    The powers and liability under our water-craft act, are akin to • those granted to and fixed upon a corporation, and those conferred upon a copartnership, by their articles- of association; and a contract made under the act not authorized by it, will in no event at- • tach to the craft.
    See Thompson v. Steamboat Julius D. Morton, 2 Ohio St. 31; Canal-boat Montgomery v. Kent et al., 20 Ohio, 54; McGuire v. Canal-boat Kentucky, 20 Ohio, 62; Schooner Muskegan v. Moss, 7 Ohio St. 377; Steamboat Monarch v. Potter & Co., 7 Ohio St. 457.
    2. A railway or steamboat in the character of common carrier, having a known line of travel, is not liable for damages arising from, negligence, in the carriage of goods, or persons beyond such limit;, with this single qualification, that such carrier has no actual interest-in the farther carriage of the goods or persons. Redf. on Railways, 282, 287; Gibson v. Culver & Brown, 17 Wend., 305; Vansantvoord v. St. John, 6 Hill, 157.
    3. - The goods were finally delivered, and there was no unnecessary delay in the delivery. Parsons v. Hardy, 14 Wend. 217; Wilbert v. N. Y. & E. R. R. Co., 2 Kernan, 247. The evidence does nota show a case of negligence.
    
      F. W. Wood, also for plaintiff in error.
    
      Lucius P. Marsh, for-defendant in error.
    
      1. This contract is within the letter of the law; it is for *the transportation of goods. The goods were received on board, and -.the damages arrive out of the contract.
    The bill of lading is a special contract, and may not be varied by p>arol evidence of usage, custom, or otherwise. Wayne v. Steamboat Pike, 16 Ohio, 425.
    2. It might well be held that a railway company, with a fixed line of road, under a charter authorizing such company to carry freight on such line, would not be authorized to contract to carry freight on another line, and would not be liable for damages arising on such other line, though such contract may have been made. The law in this case was framed to give a cumulative remedy against the boat where the owner would be liable; to avoid the necessity of hunting up owners, and give a speedy remedy against the boat itself; while a railway company, acting under a charter, is limited in its powers by the terms of its charter. But it is not true ■that such is the law in reference to railway companies. The contrary doctrine has uniformly been held in England. Muschamp v. The L. & P. J. R. R. Co., 8 M. & W. 421, and Wason v. A. N. & B. R. R. Co., 3 E. L. & E. 497; while in this country the decisions have been various. See Hart v. R. & L. R. W., 4 Seld. 37; Stratton v. N. Y. & N. H. R. W., 2 E. D. Smith, 184; Redf. on Railways, secs. 128, 135, 158, and notes ; Burtis v. B. & S. L. R. R. Co., 24 N. T. 269; Choteaux v. Leech & Co., 18 Pa. St. 224.
    3. There was unnecessary delay in the delivery of the goods. The ■evidence shows it.
   Brinkerhoee, C. J.

The bill of lading on which the plaintiff brought his action, is as follows:

“ The steamer Jonas Powell received for transportation in good ■order, from S. Thompson, the following articles, which are to’ be delivered, without delay, to consignees as per margin below. Freight ■to Philadelphia, 85 cts. per 100.
“ Dated at McConnellsville, April 19, 1861.
Marks.
“ S. Thompson Thil. Care of Eplar & Cress
Articles.
54 bbls. eggs, 3,930 doz.
Weight, 7,WO.
“ D. H. Morteey, Clerk.’

*That this paper constitutes a special contract for the safe delivery, without delay, of the eggs to the agents of the consignor at Philadelphia, unless the same be prevented by inevitable accidents or public enemies, for a breach of which the owners of the steamer would be liable to the shipper, will hardly be questioned. And the fact that the steamer was accustomed to run, and was capable of running, but a part of the distance over which the property shipped was, by the terms of the contract, to be transported, could in that case make no difference as to the liability; for where a party assumes, by special contract, the transportation of goods, it is for him to look to his means of transport, and he is responsible for such means as he may see proper to employ.

The owners of the steamer, then, being prima facie liable for the fulfillment of this contract, the leading question in the case arises, which is, whether the action lies, under the wateu-eraft law, against the craft by name .instead of the owners, for a default occurring beyond the line of customary or even possible navigation by the craft on which the shipment was primarily made? This question involves the'construction of the statute.

The amendatory act of March 10,1860, “ to provide for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name ” (4 Curwen’s Stat. 3399), provides:

“That all steamboats, and other water-crafts of twenty tuns burden, and upward, navigating the waters within or bordering upon this state, shall be liable, and such liability shall be a lien thereon, for all debts contracted on account thereof, by the master, owner, steward, consignee, or other agent for materials, supplies, or labor in the building, repairing, furnishing, or equiping the same; or for insurance, or dues for wharfage; and also for damages arising out of any contract for the transportation of any goods or persons, or for injuries done to persons or property by such craft, or for any damages or injury done by the captain, mate, or other officer thereof, or by any person, under the order or sanction of either of them, to any person who may be a passenger or hand on such steamboat or other water-craft, at the time of the infliction of such damage or injury. *And also for damages arising out of any contract for the transportation of any goods,” etc. This language, taken literally and as it stands, is certainly broad enough to cover the contract sued on by the plaintiff below, and so it must be taken, unless there Tbe some rule of construction, or some policy indicated by the general scope of the act, to limit its literal provisions and their application. And we do not know of any such rule of construction, nor' are we able to see in the act itself any indications of such a policy. The statute is a remedial one, and as such is to be liberally construed for the attainment of the ends at which it aims. The navigable waters within and bordering on Ohio extend to great distances, to other states, and to foreign countries. The owners of crafts visiting and doing business in our waters were often unknown-to persons dealing with them, numerous, widely scattered, and difficult to reach; and the leading and obvious policy of the act is, in respect to the liabilities named in it, to substitute the craft itself for-the owners, whoever and wherever they might be. We believe it is not uncommon for a kind of partnerships, or “ lines,” so called, to be formed and operated by different parties, corporate and natural, for the transportation of persons and goods over great distances- and when neither one of the parties to such combination has within himself or itself alone the means to perform what they are accustomed to contract for, and to accept pay for. Such “lines” are a public convenience. And we can see no reason why the owners of a steamer should not be a party to such combined operations, nor-why, if they assume to contract as if they are members of such a. line, whether they are in fact so or not, their craft should not, under both the letter and policy of the statute, be liable for a failure-to fulfill the contract.

It is scarcely necessary to say that this case is readily distinguishable from one in which a railroad corporation may have assumed to contract for the transportation of persons or goods to-points beyond the line of its road. In such case, a question of corporate power so to contract might be raised, which would depend upon the grants of corporate power conferred by legislation in the-particular case. But here there +can be no question as to-the power of steamboat owners to contract as they have done, and we are satisfied of the legislative intent to substitute the craft for-the owners, at the option of the party aggrieved, in cases of this-kind.

By the evidence in the case as set out in the bill of exceptions,, we are very well satisfied that there is no negligence chargeable-upon the steamer in causing the eggs to be forwarded by way of the Baltimore and Ohio Eailroad; and it is also apparent that they arrived in Baltimore in due time. It is also very clear that, on the arrival of the eggs at Baltimore, and for several days thereafter,, railroad transportation between that city and Philadelphia was' broken up and interrupted by public enemies and the military measures properly consequent thereon. But there was evidence before the jury tending to show that there were means of transportation, by water between the two cities, which were open and available, and of which the agents of the Baltimore and Ohio Company did not avail themselves with the promptitude which a due regard to the interests of the plaintiff below required and which delay resulted in loss to him. But the conflicting evidence on this point seems to have been fairly submitted to the jury, aiid we do not feel warranted in disturbing their finding on the question of fact.

Some stress, in argument, is laid on the circumstance which appears in evidence, that, prior to the shipment of these eggs, a secret contract existed between the plaintiff below and the Baltimore and Ohio Railroad Company, by which he was bound to forward all his freight destined to Philadelphia by way of that company’s road,, and thence by the Wilmington road to the former city. But we do-not see how a contract between the plaintiff below and the Baltimore and Ohio Railroad Company, to which neither the steamer1 nor her owners were a party, can affect his rights under an independent special contract between him and the steamer—especially as, in the decision of the case, we proceed on the assumption that the steamer was chargeable with no wrong in forwarding the freight, by the Baltimore and Ohio line.

Judgment affirmed.

Scott, Day, White, and Welch, JJ., concurred.  