It was the case of a libel filed in the District Court by Goddard & Pritchard, against the barque Tangier, for the non-delivery of certain bales of cotton shipped at the port of Apalachicola. The barque arrived at Boston, and the cotton was lost under the circumstances mentioned in the opinion of the court. The District Court dismissed the libel, but this decree was reversed by the Circuit Court, and the vessel ordered to pay the amount reported by the assessor. The claimants of the vessel appealed to this court.
The case was argued by Mr. Shepley for the appellants, and by Mr. Cushing for the appellees.
Mr. Shepley said that the question involved might be presented under two aspects.
First. Assuming Thursday, April 10, to have been an ordinary working day, can the libel be maintained?
Second. If not, then does the fact that Thursday was a fast day maintain it?
I. Upon the first assumption, that Thursday is to be deemed an ordinary working day, the respondents establish a full defence upon this proposition–that before the destruction of the cotton by accidental fire, and before one o'clock, on Thursday, April 10, they had unladen it upon a suitable wharf, and one selected by the libellants, and made it ready for delivery under a full and reasonable notice to the libellants, thus legally tendering a delivery.
Upon the first of these two propositions, Mr. Shepley contended that the unlading which was shown to have taken place in this case was such a delivery as terminated the liability of the carrier as carrier, and cited the following authorities:
Story on Bailments, sec. 545.
2 Kent's Com., (6th ed.,) 604, and cases in note.
1 Gray's Rep. 271, Norway Plains Company v. Boston and Maine R. R. Co.
Cope v. Cordova, 1 Rawle Rep., 203.
Goold v. Chapin, 10 Barb. Supreme Court, 612.
Garside v. Trent and Mersey Navigation Company, 4 Term Rep., 389.
Powell v. Myers, 26 Wend., 591.
Angell on Carriers, sec. 313.
With respect to the nature of the delivery, Mr. Shepley laid down the following propositions, each of which was sustained by references to the evidence.
I. the place of delivery was a proper one. It was on a wharf usual, and selected by the libellants.
II. The notices given were sufficient for all, and for unlading on Thursday as well as on previous days.
III. Before the fire, the cotton was all unladen, and that of the libellants was separated and so accessibly placed as to make it the duty of the consignee to take charge of it.
The next question is, whether the fact that Thursday was fast day, rendered the act of unlading under notice ineffectual to terminate the carrier's liability.
To show this, it must be made to appear, upon the whole evidence–that is, upon the evidence which the court judicially possesses or notices, and upon the evidence given at the trial that it is the universal usage in the port of Boston not to unlade goods, not liable to injury by weather, upon the forenoon of fast day, from a vessel whose unlading had begun and been interrupted by the neglect of consignees.
The argument upon which this position is maintained is this––
1. Thursday, April 10, 1856, was prima fronte a day proper for the discharge of cargo. The fact that the Governor of Massachusetts recommends it to be observed as a day of fasting, humiliation, and prayer, cannot be judicially known to this court to render it per se a day improper for the unlading of a half-discharged vessel.
Prima fronte that is a mere recommendation addressed to each man's free will, and which the respondents were legally at liberty to disregard; and as they did disregard it, all their rights remain unaffected under the general law.
The fact that it has been usual for the Governors to make a similar recommendation on other days, for many years, or for two hundred, on or about the same time in the year, does not advance or change the case. Each and all were mere recommendations addressed to each man's free will, which he was at liberty to disregard, and disregarding which, his rights would all remain under the general law.
2. It must appear then to the court, upon the whole evidence, that there is a usage to do no work like this under circumstances like these, to wit, the discharging of a half-discharged cargo under such circumstances as these, so universal as to bind the respondents.
The sources of this evidence are said to be––1. The judicial knowledge of the court.
2. The proofs in the cause.
(Upon each of these points, Mr. Shepley adduced various illustrations, and contended that they had a legal right to unlade on a fast day, as no law prohibited it. To strike from the week one of its working days, and compel us to a fast or a rest, to which law does not, a universal usage is demanded.
1 Duer on Ins., 258, 261, 262, 265.
The Paragon, Ware's Rep., 322.)
The proof, so far from establishing such a usage not to unlade, establishes the universal usage to unlade.
The following points of fact are established by numerous witnesses (to whom Mr. Shepley referred.)
1. That the discharge of vessels begun to be unladen before fast day continues on that day.
2. Cargoes are moved on that day from the wharf.
3. Labor is generally done on that day by all to whom it is necessary or highly convenient to do it.
4. Expresses, freight and passenger trains, go on that day.
5. It is a working day in all charter-parties.
6. Public worship is not observed.
The proof of the usage respecting fast day is not sufficiently broad to deprive the master, who has before commenced unlading, of the right to continue it with all the rights he would have had if it had not been fast day. To that extent the unsuitableness of the day fails to be established by the usage, and the master's rights cannot be destroyed by simple proof that it is not usual to receive goods on that day. That usage not to receive does not affect both parties, does not act upon both, and does not deprive the master of the right, under such circumstances, to regard the day as a suitable day for discharging. The master cannot be affected by any usage prevailing among others, which does not reach and control his conduct. Fast day is a suitable day to unlade, unless there be full proof of a usage to prevent it. That usage must be broad enough to affect the conduct of both parties. The established usage, to complete on fast day an unlading commenced before, breaks in upon the usage attempted to be established so far as to leave the ship-master in the full possession of his rights on that day to act precisely as on any other day.
The practice to unlade on that day, and the custom not to receive, are inconsistent with each other to this extent–that the custom not to receive must fail to be established, so far as it is inconsistent with the right to complete an unlading on fast day, or else such right of unlading is of no effect.
If such a usage as is contended for by libellants be established, it is one which may be waived. It was waived by Solis, the clerk, who had full power to represent the consignees respecting the unlading and delivery as their agent, and he waived all objection to a delivery on fast day.
It is the duty of consignees to remove goods from the place where landed so soon as not to occasion delay, and this they engaged to do in this case, by Solis, their clerk. They neglected to do so, and thereby made it necessary to complete unlading on fast day. They cannot have damages occasioned by fire which would not have injured their property if they had not been guilty of neglect which subjected it to that injury.
Mr. Cushing commenced his argument by stating the following general law points:
1. The bills of lading in this case import one full and complete obligation to deliver as well as to carry.
Such is the general law of carriers by sea or land.
Angell on Carriers, sec. 322.
And such is the special law of carriage by sea.
Flanders on Shipping, secs. 507, 513.
See, also, Stevens v. Boston and Maine Railroad, 1 Gray, 277.
Parsons on Merc. Law, 202, 207.
Miller v. Steam Navigation Co., 13 Bar., 361.
2. The only exception to this rule, in marine carriage, is of perils of the sea.
Fire on the wharf after landing is not within ...