2. In this action, all the goods set forth in the bill of lading were not discharged in one day. The reason does not appear. A part having been discharged on the 24th day of October, the libellant offered to pay the freight on that part, and thus placed it in the power of the carrier to have relieved himself from the responsibility of sending the goods to the warehouse.
The third point related to the usage set up by the appellee.
The fourth and fifth related to the stamps upon the bill of lading; and upon these points were cited 1 Smith's Leading Cases, 320, and 1 Parsons on Contracts, 703.
The points made by the counsel for the appellee were the following:
1. By the general mercantile law, the obligation of the carrier does not extend beyond carrying from port to port; for this he receives his freight money. All necessary and proper charges that accrue on the goods after arrival, as wharfage, cartage, &c., must be paid by the shipper. If he insist upon a delivery of all the goods at once, before payment, such charges as this renders necessary must be borne by him. According to the course of the California trade, as it appears in evidence, with respect to the lading and discharging of ships, the state of the wharves, &c., storage is proper and necessary where all the goods embraced in the bill of lading are not got out in one day; for the master is not at liberty to leave goods exposed on a wharf, but it is his duty to see that they are safely kept. (Abbott on Shipping, 7th Am. ed., 494, 495; ib., 491, 492; Flanders on Shipping, 273, 275, 276; Story on Bailments, 566; 3 Camp. R., 360; 4 T. R., 260.)
2. There is no obligation on the master to deliver part of the goods in a single bill of lading upon payment of part of the freight. (Abbott on Shipping, 493, marginal paging 377.)
3. The contract of the parties here is express, that the consignee shall receive the goods at the ship's tackles, and that freight must be paid prior to delivery, if required. The stamp is a part of the contract. (1 Duer on Insurance, 75, 141; 4 Mass., 245; 14 Mass., 322; 10 Pickering, 228; ib., 298; 4 Metcalf, 230; 8 Metcalf, 226; 16 Vermont, 26.) These cases are cited. (Chitty on Bills, 11th Am. ed., 141, note.)
4. A good and valid usage was proved; and that usage controls the general rule of mercantile law, if that rule be different from what is contended for. (1 Duer on Insurance, 255, 269, 271, 264, sec. 58; 14 Wendell, 26; 17 Wendell, 207; 9 Wheaton, 581, 230, 231; 1 Duer, 186; ib., 267.)
5. Even if the usage were not perfect and universal, but partial, yet as it was the usage of D. L. Ross & Co., and the libellants had notice of it by previous dealings with that house, and took a bill of lading with notice stamped on its face, it is binding on them. (1 Duer on Insurance, 254; ib., 263, sec. 57, 286, note, and cases cited; 4 Cow. and Hill's ed. of Phillips on on Ev., 511.)
Mr. Justice WAYNE delivered the opinion of the court.
This cause involves an important commercial principle, of daily recurrence in practice, which does not appear to be well understood and settled in San Francisco. Our decision will correct the misapprehension there in regard to the delivery of merchandise by ship-owners, and the payment of freight for its transportation.
The libellant was the owner and consignee of goods of a value exceeding four thousand dollars, which were shipped in good order and condition at New York, on board of the ship Alboni, to be carried and delivered in San Francisco, in the same order, at a rate of freight expressed in the bill of lading. It amounted to two hundred and forty-seven dollars and twelve cents, including eleven dollars and seventy-seven cents for primage. The bill of lading, upon its face, is in the ordinary form; but there was a stamp upon the back of it, in these words: 'That the goods were to be delivered at the ship's tackles when ready for delivery-not accountable for loss or damage by fire or collision; freight payable prior to delivery, if required; contents unknown.' The proctors in the cause agreed that those words were stamped on the original bill of lading.
