
    Geo. A. Simmons, Plaintiff and Respondent, v. George Law, Defendant and Appellant.
    1. Where gold dust is received at San Francisco, by a common carrier from, that place to the City of New York, to be carried and delivered by Mm at the latter place, and on receiving it he delivers to the shipper a bill of lading which states that it is received on the Antelope at San Francisco, and that “ on arrival at Panama, the same is to be forwarded across the Isthmus and to be reshipped by one of the United States Mail Steamship Company’s ships to New York, * * and to be delivered in like good order and condition at the port of New York, dangers of the seas, (land carriage and river navigation, thieves and robbers,) excepted,” and the gold dust is not delivered; the carrier is liable unless he shows that he was prevented from delivering it by some of these causes.
    2. Under such a bill of lading, the common carrier does not cease to be such as to the transportation across the Isthmus, and become a bailee for hire, chargeable only on proof, by the shipper, that the loss arose from Ms negligence or that of his servants.
    
      3. In such a case (no such defense being stated in the pleadings,) the defendant cannot prove that “it was the custom of shippers of treasure to insure it against risks upon the Isthmus; nor:
    
      4. That there was a custom, by which the carrier of gold refused to assume any risk of transportation on the Isthmus, or that the bills of lading then in use, excepted all risks of land and river carriage on the Isthmus, or that the plaintiff had previously shipped treasure by this line, and knew of this custom when he made the shipment in question.
    5. Such evidence is inadmissible for the purpose of giving thereby a construction to the bill of lading in conflict with the natural and obvious meaning of its language, or its clear legal import.
    (Before Bosworth, Oh. J., and Hoffman and Woodruff, J. J.)
    Heard, April 3d, 1861;
    decided, May 25, 1861.
    Appeal by the defendant, from a judgment. The action is brought to recover the value of gold dust shipped at San Francisco on the 14th of March, 1851, on account of the plaintiif, to be carried to, and delivered to him at the city of Hew York; but which was never delivered. It was shipped on board the Atitelope, one of a line of ships owned by the defendant, under a bill of lading in these words, viz.:
    “ Shipped, in good order and well-conditioned, by Collins, Cushman & Co., on board the steamer called the Antelope, whereof E. H. Ackley, Esq., is master, now lying in the port of San Francisco, and bound for Panama, to say: One package treasure, (said to contain two hundred and nine oz., ten dwts., fifteen grains, Troy, Gold Dust, valued at $16 per oz., is three thousand, three hundred and fifty-two dollars and fifty cents.)
    “ On arrival at Panama, the same is to be forwarded across the Isthmus, and to be reshipped by one of the United States Mail Steamship Company’s ships to Hew York, (with the right to ship on any other steamship, in case said Company’s ship should not be there on the arrival of said package,) being marked and numbered as in the margin, and to be delivered in like good order and condition at the port of Hew York, dangers of the seas, (land carriage and river navigation, thieves and robbers,) excepted, unto George A. Simmons, Esq., or Ms assigns, freight for the said package having been paid by the shippers through to Hew York, as per margin.*
    “ In witness whereof, the master or agent of the vessel hath affirmed to six bills of lading, all of this tenor and date, one of which being accomplished the others to stand void.
    “ San Francisco, March 14th, 1851.
    “ Contents unknown to “ M. L. Pultz,
    
      “Purser.”
    
    On the trial before Bosworth, Oh. J., and a Jury, June 26, 1860, it appeared that the gold dust in question, with a large amount of other treasure, was carried by the Antelope to Panama.
    At Panama such treasure was taken ashore in boats and carried by some twenty or twenty-five natives of the country to the office of Mr. Tracy, an agent of the line, where the packages were called off and checked; none then appeared to be missing.
    On the next morning, April 7th, the treasure was loaded upon mules, and in charge of some four or five conductors, one of whom was a volunteer-guard, and another a passenger recently arrived from California, and of twenty native muleteers, was carried about twenty-five miles to
    * LAW’S LINE OF PACIFIC STEAMERS.
    Marks and Numbers. Gross Weight Alleged Value. 13. fs..l Boston, Mass. 16| lbs. gross. Avor. [l. s.] $3,352 50 Freight through to New York 1\ per cent. Five per cent primage,................. $50 29 2 51 Paid,.......................... $52 80
    Received, payment, through to New York,
    O. OHARLICK,
    
      Per Crane. Gorgona, where the train remained over night, and where Mr, Tracy left it. From Gorgona the train proceeded by water, stopping at night at Gatoon, and arrived, April 9th, at Chagres, where the treasure was delivered to the agent of the U. S. Mail Company, with the exception of two packages, one of them being that consigned to the plaintiff, which it then appeared were missing. Ho robbery, assault, or accident of any description occurred on the way.
    After due demand, and on the 9th of September, 1851, this action was commenced. The value of the gold treasure, at the port of destination, was proved.
    The only defense stated in the answer, in addition to a denial of material allegations in the complaint, is presented by the averment, that the “gold dust was stolen by thieves and robbers from the agents and servants of the defendant, between Panama and Chagres, while the said agents and servants were engaged in transporting the same from Panama to Chagres by land and river.”
    The defendant offered to prove certain facts, and made several requests to charge, which are stated in the opinion of Hoffmas, J. The main points in the controversy depend upon the construction and legal effect of the bill of lading; the defendant insisting and asking the Court to charge, that according to its true construction, “the transportation on the Isthmus by road and river navigation was to be at the risk of the plaintiff, and that so far as the Isthmus was concerned, the defendant was a bailee for hire and not a common carrier, and that the plaintiff cannot recover in this action, unless he proves that the loss was by the negligence of the defendant or his agents.” The Judge refused so to charge and the defendant excepted.
    The charge (which was not excepted to) was as follows, viz.:
    “There is no question that the gold dust belonging to the plaintiff, was shipped on the defendant’s line at San Francisco, to be brought to Hew York, and delivered here. There is no question, that it has not been delivered. The plaintiff brings this suit to recover of the defendant, the value of the gold dust, because it has not been delivered here. By the bill of lading the defendant agreed to deliver it here, unless he was prevented from doing so by some of the perils or causes specified in that bill of lading—among those are dangers of the seas, land carriage, river navigation, thieves and robbers. The gold dust not having been delivered, it is incumbent upon him to show by satisfactory evidence, that he has been prevented from delivering it by some of these causes.
    “There is no pretense that it was lost by dangers of the seas, if it reached Panama, and the evidence seems to be satisfactory that it did reach there.
    “There is no evidence that it was lost by robbers—that is, none of the persons in charge of the gold dust, pretend that they were attacked by any person, or that it was taken from them by violence. And the question of fact submitted to you by the counsel for the defendant is, that it was really stolen ; lost by thieves.
    “In the first place, it is proper to say, that even if it was stolen by persons employed by the company—by Mr. Law’s line, his agents, or servants, or employees, still he would be responsible. And, as it occurs to me now, I will state to you, that is of no sort of consequence in the disposition of this suit, that the plaintiff did not effect an insurance against any of the dangers of the voyage— whether he did or not would not affect the Lability of Mr. Law, on the contract which he had made.
    “Is there any evidence to satisfy you that this was lost by thieves—that is, stolen by persons not in the employment of Mr. Law, his agents or employees in connection with the business of this line ? The evidence will probar bly satisfy you, that that gold dust reached Panama.
    “ Then the next question is, did it start on the morning of the 7th in the mule train for Gorgona ? That question you will determine upon all the evidence, find if it did not, then there is no evidence to show what became of it, or which tends to show in what way it has been disposed of, or what has been its fate ? If you are satisfied that it left Panama for Gorgona, in that train, could it have been lost on the way without great carelessness on the part of the persons having charge of it ?
    “Here were these muleteers employed to take charge of the mules—these guards, each one having his attention directed particularly to the five mules in front of him; and it seems impossible that it could have been, dropped or lost on the way, there being no accident or casualty occurring, and no stopping any where as they say, for refreshments, until they reached Gorgona. There was no robbery they say, on the way, and it is pretty difficult to conjecture on what principle there could have been any theft of the treasure between Panama and Gorgona.
    “The statement is, that when they reached Gorgona, they placed it in the warehouse and it was watched during the night by these guards. There is no pretense that any body got into the house, or that there was any one in or around the house, except the persons having charge. If you are satisfied that all that went into the house went on board the boat, then it was lost after it went on board - the boat. If it was not left at Panama, and was not lost between there and Gorgona, and went on to the boat, then it was lost between Gorgona and Ohagres, because the evidence tends to show that it was not delivered from the boat; the packages were taken out, the accounts were delivered, and it was not there.
    “If it went on board of the boat, and if it was not on board when it reached Ohagres, how did it disappear? There is no pretense that any person was on board the boat except these guards and persons employed to manage it. There was no robbery committed there by any outside persons, and it is not suggested that any such person was on board, or had any facility for stealing it, so that he could have stolen it.
    “How, you are to be satisfied, in order to find a verdict in favor of the defendant, that this was stolen by some person not in his employ, or that it was taken from those in charge of it by robbery.
    
      “The last proposition. I do not think the defendant would urge as true in point of fact.
    “Is there any evidence which satisfies you that it was stolen, if stolen at all, by persons not in the employ of the Company? If the evidence shall satisfy you of that fact, of course you will find in favor of the defendant. If, on the contrary, there is no evidence to satisfy you that such is the fact, then your verdict will be for the plaintiff.
    “There is no controversy, I believe, in respect to the value of the gold dust, at this place. The plaintiff is entitled to the value here, with interest on that value from the time of the demand made, after it was the duty of the defendant to have delivered it here.
    “I do not understand that any objection is made to the computation in the event that you shall find for the plaintiff.”
    The cause was then submitted to the Jury, who, after retiring, returned into Court with a verdict for the plaintiff for $5,848.18, damages.
    From the judgment entered on this verdict, the present appeal is taken.
    
      J. W. Ashmead, for appellant.
    
      William Bliss, for respondent.
   Hoffman, J.

It appears to me that the bill of lading properly admits of only one construction; and that is, that the parties undertook, as common carriers, to transport the treasure from San Francisco to Panama; then to be forwarded across the Isthmus; then to be reshipped by one of the vessels designated to Hew York, there to be delivered ; and that the exception to responsibility, was from dangers of the seas, dangers of land carriage, and river navigation, and dangers from thieves and robbers.

The duty assumed by the defendants, was the duty of common carriers throughout; and, to exonerate themselves from liability for a loss, they were bound to show that it occurred from one or more of the causes within the exception.

The learned Judge covered these cases in his charge to the Jury. “The gold dust not having been delivered, it is incumbent upon the defendant to show, by satisfactory evidence, that he has been prevented from delivering it by some of these causes.

Ho part of the charge is excepted to.

The defendant’s Counsel requested the Court to charge, “ that the true construction of the bill of lading is, that the transportation on the Isthmus by road and river navigation was to be at the risk of the plaintiff, and that, so far as the Isthmus was concerned, the defendant was a bailee for hire, and not a common carrier; and that the plaintiff cannot recover in this action, unless he proves that the loss was by the negligence of the defendant or his agents. The Court refused so to charge, to which refusal the defendant’s Counsel excepted.

There is not in my opinion the slightest reason in the language or apparent object of the instrument, to warrant such a construction. The duty as common carrier is not severed so as to last for the voyage from San Francisco, to Panama, then to cease on the Isthmus, and to be resumed at the Atlantic Ocean. If so important a change of relations was intended by the parties, they should have employed terms adequate to have expressed it. There are none such here.

The only other exceptions arise as follows:

The defendant’s Counsel put to the witness the following question: “In what shape was this bill of lading, when presented to Collins, Cushman & Co.,” (the shippers of the gold dust.) The plaintiff’s Counsel objected to the question. The Court sustained the objection, and the defendant’s Counsel excepted.

The defendant’s Counsel then offered and proposed to prove by the witness:

“ That it was the custom of shippers of treasure to insure the treasure against risks on the Isthmus.

To prove the customary premium on insurance of treasure, against the risks of the Isthmus in March, 1851.

“To prove that there was a custom in reference to the transportation of treasure across the Isthmus in 1851, and previous thereto, by which the carrier of gold from San Francisco to New York, refused to assume any risk of transportation on the Isthmus, and that the bills of lading then in use, excepted all risks of land and river carriage on the Isthmus.

“ To prove that the bill of lading read in evidence by the plaintiff, was entered into with this understanding, for the purpose of explaining any ambiguity in the language.

“To prove that the parties who shipped the treasure in question, had frequently before shipped treasure by the line on which this treasure was shipped, and when they shipped this treasure they knew the customs which the defendant’s Counsel had offered to prove as above stated.

“And to prove that Henry Tracy was the agent at Panama, of the United States Mail Steamship Company, and not of the defendant.”

To each of these offers or propositions which were separately made, the plaintiff’s Counsel objected, as they were respectively made, and the Court sustained each objection, and excluded all of said testimony. And the defendant’s Counsel excepted to each of such decisions of the Court.

The leading object of these offers of counsel, is to show that a custom existed by which the plain language of a bill of lading constituting common carriers is to be superseded, and that they were bound, for a portion of the transportation of the goods, only for acts of neglect on their own part, or on the part of their servants; that the burden of proof is changed, and instead of discharging themselves by proof of the case being within an exception, the shipper must show their negligence and fault.

I cannot imagine that any respectable authority can be found which would justify the introduction of a custom in proof to control and annul the legal effect of the instrument in question. It is also remarkable, if the bills of lading in common use had the effect ascribed to them, that in the present instance a wholly different bill of lading has been used, without any proof of mistake or accident.

The appellant has not relied, in his points, upon the exceptions for not admitting proof of an insurance by the plaintiff. We cannot see how such a fact could have varied the case. Nor has he insisted upon the repetition of the offer to prove that he was the agent of the mail company at Panama and not of the defendant.

I think the judgment should be affirmed, with costs.

Bosworth, Ch. J., and Robertson, J., concurred.

Judgment affirmed.  