(after stating the facts as above). The Luckenbach Steamship Company, Inc., accepted the merchandise for transportation without its own bill of lading. It became liable through the adoption of the bill of lading of the Canadian Pacific Railroad Company.
. The merchandise was damaged by sweat of the hold, and notice of claim was not given in writing to the Luckenbach Steamship Company, Inc., in 10 days, but was given in 40 days.
The determination of this suit depends upon what is the seaboard port of discharge mentioned in the bill of lading.
The part of the bill of lading which particularly relates to the port of discharge reads:
“Shipped * * * on the steamship Empress of Asia, * • * at the port of Kobe, * * * to be delivered * * * from the ship’s tackle * * * at the port of Vancouver, * * * unto the Canadian Pacific Railway Company, * * * by whom the goods shall be delivered to the railway company, or steamship company, or other carriers designated herein or-intended to continue the transit, for forwarding * * * to the station nearest to New York via Panama. * * * ”
Two places are mentioned in the bill of lading, the port of Vancouver and the station nearest to New York, which, of course, under the circumstances, is New York.
It is significant that New York is not named as the port of New York, but the words “New York via Panama” are. written, not printed. This, however, under the circumstances, makes no difference in the construction of the bill of lading.
But one vessel, the Empress of Asia, is mentioned, and it is expressly provided that the property shall be delivered from the ship’s tackle at the port of Vancouver, where the responsibility of the ship and its owner shall cease.
This delivery is to be made to the Canadian Pacific Railway Company, by whom delivery shall be made to the railway company, or steamship company, or other carriers designated therein for forwarding.
That the shipper may not have used the form customarily used for all-water shipments is of no moment, because the form used made provision for continuing transit by rail- • way company or steamship company.
There are two sets of liberties, exceptions, and stipulations, viz. the first, “with respect to the service until delivery at the seaboard port of discharge as within mentioned;” the *948second, “with respect to the service after delivery as above specified at the port of discharge.”
To construe the bill of lading as describing New York as the port of discharge, in accordance with appellee’s contention, would make the,second set of liberties, exceptions, and Stipulations a nullity.
To construe the bill of lading in accordance with appellants’ contention would give effect to both sets of liberties, etc., the first set until discharge at the port of Yancouver, from the only vessel named; the second set from that time until final delivery at New York.
To construe it in accordance with appellee’s contention would not give effect to the whole instrument.
That construction which gives effect to the whole instrument is Co be preferred (Carver on Carriage of Goods by Sea [6th Ed.] § 173); and it is clear that it was contemplated that the goods might be forwarded by water after being discharged at the port of Yancouver, because it was provided in the bill of lading that the merchandise, after being discharged at the port of Yancouver, “shall be delivered to the railway company or steamship company or other carriers for forwarding.”
No damage to the property occurred while on the Empress of Asia, but the damage. was sustained while on appellee’s ship, Lewis Luckenbach.
Applying the second set of liberties, etc., the appellant had 40 days to file its claim, and the same was filed well within that time, and the appellee cannot urge sweating of the cargo as a defense.
The port of Yancouver must be regarded as the seaboard port of discharge.
The decree is reversed, with costs in both courts, and the District Court is directed to enter an interlocutory decree in conformity with this opinion.