Mallory S. S. Co. v. Garfield

HAND, Circuit Judge

(dissenting). I agree that the complaint is badly drawn, but it seems to me good after verdict, if read with section -213 of the New York Civil Practice Act. The fourth article alleges that the cotton was delivered to the Wichita Railroad, which issued a bill of lading to the plaintiff’s agent, and that it was forwarded by the defendant, the Clyde Company, the Meet Corporation, and the New Haven Railroad to the plaintiff at Natick, R. I. Article 6 alleges that the cotton was delivered by the Wichita Railroad to the “Mallory Steamship Company, and/or Clyde Steamship Company as agents” for the Meet Corporation, and article 8 that one or all of these three, together with the New Haven Railroad, was responsible for the delay. Considering the alternative form of pleading now permissible under section 213, this charged that the Wichita Railroad delivered the cotton to the defendant, a common carrier, as agent for the Fleet Corporation, and that the delay was due to it and the New Haven Railroad. The allegation of agency was not redundant, if the Fleet Corporation was to be held, and, redundant or not, it could do no harm, if in law the agency of the defendant did not absolve it from its duties as a connecting carrier. The defendant has succeeded upon the idea that this circumstance exonerated it, and it is from that conclusion that I dissent.

The facts are that the defendant, whose general business was that of a common carrier, was operating a ship owned by the United States under a contract with the Fleet Corporation. The contract described it as an agent, gave it only commissions, and required it to account for all profits, but also required it to equip, supply, and disburse the vessel, and to keep her seaworthy. Further the defendant was to “manage, operate, and conduct the .business” of the vessel, to “perform all the customary duties of a managing and operating owner, * * * and all customary agency duties concerned with loading and discharging.” It was to issue “to shippers customary charter parties, freight contracts, and bills of lading,” and to collect all freights. We know nothing about the transaction, except that, while operating the vessel under this contract, the defendant received the cotton from the initial carriers, carried it to Boston, and discharged it on a pier, where it lay for an unreasonable period till delivered to the New. Haven Railroad. This is the delay complained of.

On those facts it seems to me that the only possible conclusion is that the defendant assumed a duty or an obligation to deliver the cotton to the succeeding carrier, the New Haven Railroad, which it did not discharge, and that it is entirely irrelevant whether or not, in so doing, it was in fact acting as an agent for the Fleet Corporation. The liability of a carrier under such circumstances arises either upon a duty imposed by law, or upon a contract implied from acceptance. I do not see that it makes any difference which it is, though it is less artificial to regard it as a duty imposed, as it certainly has now become under the Carmack Amendment (Comp. St. §§ 8604a, 8604aa). Kansas City Southern Ry. v. Carl, 33 S. Ct. 391, 227 U. S. 639, 648, 57 L. Ed. 683. I shall consider the liabilities under either view.

If the liability sounds in contract, we are to suppose that the defendant made a promise to the Wichita Railroad, acting for the plaintiff, to transport the goods with customary dispatch. That is the only theory on which any contract could arise, and it has been several times countenanced, at least obiter. Briggs v. Railroad, 6 Allen (Mass.) 246, 83 Am. Dec. 626; Marq. Houghton & Ont. R. R. v. Kirkwood, 7 N. W. 209, 45 Mich. 51, 40 Am. Rep. 453; Dunham v. Boston & M. R. R. Co., 70 Me. 164, 35 Am. Rep. 314; Sherman v. Hudson River R. R. Co., 64 N. Y. 255, 261. This case depends upon whether the defendant’s promise bound only the Fleet Corporation, or both it and the defendant as well. That is a question of intent, to be gathered from the expressions used, in this ease to be imputed from the acts and mutual relations of the parties. If the principal is not disclosed at all, the agent is of course bound. Cobb v. Knapp, 71 N. Y. 348, 27 Am. Rep. 51; Bartlett v. Raymond, 30 N. E. 91, 139 Mass. 275. Indeed, he is bound if his principal’s identity is not known, even though he be known to be acting as an agent. Horan v. Hughes (D. C.) 129 F. 248, affirmed 129 F. 1005, 64 C. C. A. 581 (C. C. A. 2); De Remer v. Brown, 59 N. E. 129, 165 N. Y. 410.

Hence the question here is whether the defendant was known to be acting on behalf of the Fleet Corporation when it accepted the cotton. The record is entirely barren on that subject, and the statement in the opinion of the court that it “did in fact actually and ostensibly act as agent, and not as principal,” must rest entirely upon presumption. I agree that the plaintiff, having the burden, was bound to shown that the implied promise was made by the defendant on its own behalf, but that is the only reasonable inference from the *669situation. The defendant was in fact a carrier, was operating a ship intrusted to it as a managing owner, was managing, directing, and conducting its business, and had complete charge of its personnel and supplies. It is most unnatural to suppose that, so conducting the business, it declared to shippers and connecting carriers that it was acting on behalf of the ship’s owner. Prima facie, its ostensible relation would follow the contract under which it acted; it would appear to manage and conduct its business as owner, just as it had engaged to do. If so, I do not understand that my brothers mean to hold that it was not the promisor, and our difference apparently only concerns what are the reasonable presumptions. It is difficult to be dogmatic on sueh a question, and yet I must confess that it seems to me very clear.

If, on the other hand, the liability arises from a duty imposed by law and sounds in tort, the result is exactly the same. That duty is an incident to undertaking the business of a common carrier. If the defendant did not indicate to persons who dealt with it that it was acting for another carrier, it cannot escape. In that ease it did all those things which a carrier does; that is equivalent to engaging in the business and the duties attached, nolens volens. The defendant’s argument wholly misconceives the reasoning of those cases which exonerate employees of a carrier from liability for acts of omission. The duty is imposed upon him who undertakes the business, and employees do not do that. But a carrier may be no less in the business while acting for another, if he plays the part of a carrier, and he will play that part if he holds himself out as sueh by appropriate conduct. Therefore, again the question is merely whether, on this record, we should suppose that the defendant acted ostensibly as the carrier.

Finally, if the defendant was under an obligation or duty, it extended to a delivery to the connecting carrier, the New Haven Railroad. That duty it could not devolve upon the Clyde Steamship Company, certainly" not itself in this respect a connecting carrier. Thus, it makes no difference whether the pier was in the possession of that company, of the Fleet Corporation, or of the defendant itself. In any case, it must perform or show some excuse, which it has not done.

I also think that the learned judge was correct on the point of damages, but, as my views are not to prevail, it is idle to give my reasons. Indeed, I should not have stated them so extensively, were it not that the case seems likely to recur, and to have an importance beyond that of the interests immediately involved. I think that the judgment should be affirmed.