Merchants' Despatch Transportation Co. v. Hately, (1887) 14 SCR 572

“3. It is further agreed, that the said Great Western Railway, and its connections, shall not be held accountable for any damage or deficiency in packages after the same have been receipted for in good order by consignees, or their agents, at or by the next carrier beyond the point to which this bill of lading contracts. Consignees are to pay freight and charges upon the goods or merchandise in lots or parts as they may be delivered to them.

“4. It is further stipulated and agreed, that in case of any loss, detriment, or damage done to or sustained by any of the property herein receipted for during such transportation, whereby any legal liability or responsibility shall or may be incurred, that company alone shall be held answerable therefor in whose actual custody the same may be at the time of the happening of such loss, detriment, or damage, and the carrier so liable shall have the full benefit of any insurance that may have been effected upon or on account of said goods.

“6. It is further agreed, that the said Great Western Railway, and its connections, have liberty to forward the goods or property to port of destination by any other steamer or steamship company than that named herein; and this contract is executed and accomplished, and the liability of the Great Western Railway, and its connections, as common carriers thereunder, terminates on the delivery of the goods or property to the steamer or steamship company’s pier at New York, when the

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responsibility of the steamship company commences, and not before.”

The bills of lading were signed by “William Brown, agent severally but not jointly,” and endorsed by Hately and the consignees.

The Great Western Railway Company were to forward the butter to the Suspension Bridge and the Dispatch Company thence to New York, where it was to be delivered on board a steamer of the S.S. Co., who were to carry it to England. This arrangement was carried out, but when the butter was taken from the cars as New York and placed in lighters to be put on board the steamer Dorset then in dock, a delay occurred. The lighter could not get near enough to place the butter either on the steamer or the pier at which she lay, and the stevedore in charge of the steamer caused the lighter to be towed across the river to Brooklyn, directing the lighterman to remain there until he sent a tug to bring it back. The Dorset sailed on September 3rd without the butter, and it was finally sent by the “Bristol” another steamer of the S.S. Co. on September 7th. On arrival in England the butter was found to be injured by the heat.

Hately brought an action against all three companies and on the first trial he was non-suited on the ground that the action should have been brought by the consignee who had paid him for the butter. The Divisional Court set aside the non-suit, and allowed the consignee to be joined as plaintiff in the action. That decision is reported in 2 O.R. 385. The action was tried again and Hately obtained a verdict against all the defendants. The Despatch Company appealed from the judgment at the trial directly to the Court of Appeal, and the other defendants to the Divisional Court. The latter court sustained the verdict against the S.S. Co., who then appealed to the Court of Appeal which reversed the decision of the Divisional

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Court and affirmed that of the judge at the trial, as to the Despatch Company, leaving the plaintiff with his verdict against that company. The latter company then appealed to the Supreme Court of Canada.

Robinson Q.C. and Millar for the appellants, cited the following cases:—

Collins v. Bristol and Exeter Railway Co.,^[3]; Wilby v. West Cornwall Ry. Co.^[4]; Strong v. Natally^[5]; Pratt v. Ry. Co.^[6]; London & North Western Ry. Co. v. Bartlett^[7]; Hutchinson on Carriers^[8].

Moss Q.C. for the respondent referred to Muschamp v. Lancaster & Preston Junction Ry. Co.^[9]; Nashua Lock Co. v. Worcester and Nashua Railway Co.^[10]; Kent v. Midland Ry. Co.^[11]; Hyde v. Navigation Co.^[12]; Angell on Carriers^[13]; Lawson on Carriers^[14].

Sir W.J. RITCHIE C.J.—It appears to me that the only question in this case is: Was the butter delivered in good condition to the steamer or steamship company’s piers at New York, as the defendants undertook to do, and if it was not was the butter damaged while in charge of the Transportation Company in accordance with the terms of the condition contained in the bill of lading? It is abundantly clear that under the bill of lading placing the butter on board the barge at New York was not a delivery to the steamship company. It seems to me that the fact of sending the goods away from the pier was a refusal to receive them and I cannot see that the transportation company, as against the plaintiff, while the goods were on board the barge had any right to leave the pier with them and remain away for so long a time as to destroy the butter. They should, in my opinion,

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have insisted on the acceptance of the goods at the pier; if the steamship wrongfully neglected or refused to accept the goods I cannot see that this is any answer to the plaintiff’s claim, though it may, between the transportation and the steamship company, be a matter for controversy. The transportation company assumed the responsibility of seeing that the goods were delivered on the pier in such manner that they could be shipped by the first steamer, which it is quite clear they might have been on board the “Dorset,” which sailed on the 3rd of September. It is said that the barge or lighter could not get to the pier; in my opinion whether it could or not get to the pier should have been first ascertained, and a perishable article such as butter should not have been sent away under such a heated atmosphere until it was ascertained that it would reach the pier without unreasonable delay, which was obviously not possible in this case by reason of other lighters engaged in unloading the “Dorset,” and the lighter with the butter was sent away because it was blocking the way showing very clearly that the butter was sent too soon and should not have been removed from the ice car until a proper delivery in the terms of the bill of lading could have been effected.

In this case I can see no reason why, if the barge could not reach the pier, instead of sending the barge away, as was done, the butter was not immediately returned to the ice car from which it had been taken, and kept there until the delivery at the pier could be effected. If the butter was improperly moved at the instigation of the steamship company before it could be received at the pier that might possibly form a very good subject for a claim by the transportation company against the steamship company, but Ï entirely fail to see how it is an answer to the unfortunate owner of the butter who had a right to look to the

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transportation company to see that his property was delivered at the pier in a position to be then and there shipped from the pier.

Therefore I think there was no delivery to the steamship company or the steamship company’s pier until after the damage to the butter occurred, which took place while in the possession of the transportation company and for which they are responsible, in my opinion, to the plaintiffs.

STRONG J.—For the reasons assigned by the Court of Appeal I am of opinion that the judgment appealed against ought to be affirmed.

FOURNIER J.—Concurred.

HENRY J.—I am of opinion that the appellant company were the original contractors to carry the butter from the place where it was delivered to them to England, and that the bill of lading only settles the liability between the different carriers. There was no privity of contract between the shipper and the steamer.

The transportation company were guilty of gross negligence in taking the butter out of the ice car in the hot weather of New York and exposing it to the sun in a lighter. They should not have moved it in the heat of the sun until it was in a position to be placed on board the steamer, and when the steamer authorities declined to take immediate delivery of the butter it was the duty of the transportation company, who owned the lighters, to place it in a position where it would be preserved until it could be received by the steamer. The company were guilty of express negligence, and for these reasons I think the judgment of the Court of Appeal was right and that this appeal should be dismissed with costs.

TASCHEREAU J.—I concur in the judgment delivered by the Chief Justice, and for the reasons given

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by him I think this appeal should be dismissed with costs.

GWYNNE J.—The Merchants’ Despatch Transportation Company are, in my opinion, clearly liable for the loss of the butter in question as the parties who contracted with the plaintiff Hately to convey the butter to England, whatever may be their rights over against the Great Western Railway Company or the New York Central and Hudson River Railway Company or the Steamship Company with whom they contracted for the actual carriage of the butter. The plaintiff Hately in delivering the butter to the Great Western Railway Company at London, was acting merely in pursuance of the instructions given to him by the Despatch Transportation Company and for the purpose of enabling that company to fulfil their contract with him, and they cannot now be heard to claim exemption from liability under their contract by appealing to the bill of lading which, in pursuance of the arrangements existing between the Despatch Company and the railway companies through whom the former company carry on their business, the Great Western Railway Company issued to Hately. The difficulty which this case presented in the courts below appears to have arisen wholly from the mode in which the Merchants’ Despatch Transportation Company transact their business—a mode designed apparently for the purpose of mystifying the persons with whom they enter into contracts and of throwing difficulties in the the way of their recovering compensation for undoubted injuries, by attempts to shift their own responsibility to some or one of the carriers with whom, to enable them to carry on their business as a Despatch Transportation Company, they find it to be their interest to enter into special arrangements. There is no such difficulty in the case before us as the Despatch Transportation Company are the only defendants who are par-

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ties to this appeal, and as to their liability there can, I think, be no doubt.

Appeal dismissed with costs.

Solicitors for appellants: Morphy & Millar.

Solicitors for respondents: Fitch & Brewster.