MILNE V. DOUGLASS and others.*

(Circuit Court, E. D. Missouri. April 26, 1882.)

COMMON CARRIERS-JOINT CONTRACTS.

Where three railroad companies having connecting lines of road, and a steam-ship company connecting with the terminal line, entered into a contract with A. to transport certain property over their roads and upon said steamship company's vessels from X. to Z., and A. suffered loss through the negligence of one of said contracting parties in transporting said property, held, that said companies were jointly liable, notwithstanding the fact that the bills of lading under which said property was shipped were signed by the agent of said companies "severally but not jointly," and although said bills of lading provided that "in case any loss, detriment, or damage is 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;" that the liability of said roads should cease upon their delivering said property to said steam-ship company in safety, and although said bills of lading contained the the following clause, viz. : "NOTICE. In accepting this bill of lading, the shipper, or agent of the owner of the property carried, expressly accepts and agrees to all its stipulations and conditions."

Demurrer to Answer.

This is a suit brought by John Milne against John M. Douglass, receiver of the Ohio & Mississippi Railway Company, and the New York, Pennsylvania & Ohio Railroad Company, the New York, Lake Erie & Western Railroad Company, and the Red Cross Line of steamships. The petition states that plaintiff is a commission merchant, doing business at Dundee, Scotland; that said steam-ship line and railroad companies are corporations; that said Douglass is receiver of the company first aforesaid; that defendants had received certain shipments of flour in the city of St. Louis for and on account of plaintiff, to be transported by them to Dundee, Scotland; that defendants failed to transport said flour within a reasonable time to its said destination; and that plaintiff was thereby damaged in a sum stated. Defendant Douglass filed a separate answer stating that said flour had been shipped under bills of lading attached to the answer; that it had been transported by the Ohio & Mississippi Railway Company to the end of its line without delay, and then delivered in safety to the New York, Pennsylvania & Ohio Railway Company, and that its liability under said bills of lading thereupon ceased. The New York, Pennsylvania & Ohio Railroad Company and the *Reported by R. F. Rex, Esq., of the St. Louis bar.

New York, Lake Erie & Western Railroad Company filed similar answers, each alleging that the flour had been transported over its road without delay, and turned over to the connecting line in safety. The bills of lading referred to by defendants' answers were each, so far as they need be here set out, as follows:

"Through bill of lading, No. -, of the Ohio & Mississippi Railway, New York, Pennsylvania & Ohio Railroad, and New York, Lake Erie & Western Railroad, and the Red Cross Steam-ship Line, from St. Louis to Dundee. Shipped * * * per Ohio & Mississippi Railway, New York, Pennsylvania & Ohio Railroad, and New York, Lake Erie & Western Railroad, to New York, to be there delivered to the steam-ship pier for transportation by the Red Cross Line of steam-ships, or other steamers, from New York to Dundee, Scotland, the following property: * To be delivered in like good under the following

order and condition at Dundee unto order terms and conditions, viz.:

"It is further stipulated and agreed that in case any loss, detriment, or damage is 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.

"It is further agreed that the said Ohio & Mississippi Railway, New York, Pennsylvania & Ohio Railroad, and New York, Lake Erie & Western Railroad have the liberty to forward the goods or property to port of destination by any other steam-ship company than that named herein, and this contract is executed and accomplished, and the liability of the Ohio & Mississippi Railway, New York, Pennsylvania & Ohio Railroad, and New York, Lake Erie & Western Railroad, as common carriers thereunder, terminates on the delivery of the goods or property to the steamer or steam-ship company's pier at the port of New York, when the responsibility of the steam-ship company commences, and not before.

"NOTICE. In accepting this bill of lading, the shipper, or agent of the owner of the property carried, expressly accepts and agrees to all its stipulations, exceptions, and conditions.

"In witness whereof, the agent, signing for the said railway lines and steam-ship company, hath affirmed three bills of lading. *

* *

"C. L. DEAN,

"Agent severally, but not jointly.'

No answer was filed by the Red Cross Line of steam-ships. Plaintiff demurred to all three answers on the ground that the matter and things therein contained constitute no defense to the plaintiff's action, or show any relief from the liability incurred when

the bills of lading referred to therein were signed and the flour received for shipment.

G. M. Stewart and Paul Bakewell, for plaintiff.

Garland & Pollard, for defendants.

TREAT, D. J. The purpose of these demurrers is to call for an interpretation of the bills of lading, and the liabilities of the respective parties thereunder. Possibly the question presented may not, for technical reasons, fully arise on the demurrers, yet as the defendants stand on the contracts exhibited and count thereon, the court states that the contract as executed, despite some inconsistent terms therein printed, and despite the designation by the agent that he signed the same, "agent severally, but not jointly," bind each and all of the parties for the safe delivery at the place of destination of the property shipped. Such it is held is the true construction, in the light of the better authorities, now put on contracts like these here. presented. See Railroad Co. v. Mills, 22 Wall. 594; Hutch. Carr. §§ 146, 152; Bank, etc., v. Adams Ex. Co. 93 U. S. 174; Myrick v. Michigan Cent. R. Co. 7 Rep. 229; Ry. Co. v. Pratt, 22 Wall. 123, 130; Lawson, Cont. Carr. 343. See, also, note to Snider v. Express Co. 4 Cent. Law. J. 179, 180, 181; Hooper v. Wells, 5 Am. Law Reg. (N. S.) 16, with notes by Judge Redfield; 2 Am. Law Rev. 426.

Reference is made by defendants to Citizens' Ins. Co. v. Kountz, 10 FED. REP. 768, which it is supposed presents a different view. So far as the statute of Missouri (Rev. St. 1879, p. 95) may or may not affect the rights of parties under circumstances like these here presented, it must suffice to state that it is in accord with the general doctrine here announced.

The demurrers are sustained.

THE DEVONSHIRE.

(Circuit Court, D. Oregon. July 28, 1882.,

1. BERTHS ON STEAM-VESSELS.

The provisions of section 2 of the act of March 3, 1855, (10 St. 716; section 4255, Rev. St.,) relating to the construction and occupation of berths on vessels carrying passengers from foreign ports to the United States, are not deemed applicable to steam-vessels.

2. RE-ENACTMENT OF STATUTE-FORMER CONSTRUCTION OF IT.

Where a statute has received a judicial construction and is afterwards re-enacted by the legislature of the same or another country, it is presumed to have been passed as construed.

In Admiralty.

James F. Watson, for the United States.

John W. Whalley, for claimants.

DEADY, D. J. This is a suit in rem brought by the United States to enforce a lien against the British steam-ship Devonshire for $4,130 of penalties alleged to have been incurred by the master and owners by violation of section 2 of the act of March 3, 1855, (10 St. 716; section 4255 of the Rev. St.,) entitled "An act to regulate the carriage of passengers in steam-ships and other vessels."

The libel alleges that on June 12, 1882, the said steam-ship, at the port of Hong Kong, China, took on board 826 passengers, and on July 7, 1882, brought the same to the port of Astoria, and within the jurisdiction of the United States and this court; that the berths used by the passengers on said voyage were not constructed parallel with the sides of the vessel or separated by partitions, or two feet in width, as required by said section 4255 of the Revised Statutes, and were occupied by more than one passenger, contrary thereto, whereby said master and owner of said steam-ship, severally, became liable to pay to the United States a penalty of five dollars for each of said passengers, and that the libelant has a lien upon said steam-ship for the amount thereof.

The claimants except to the libel, and allege that the Devonshire is a steam-ship, and the passengers in question were steerage passengers, and therefore said section 4255 of the Revised Statutes upon which the libel is founded, does not apply to her, and pray that the libel may be dismissed.

The first section of this act (sections 4252-3-4 of the Rev. St.) provides that "no master of any vessel," foreign or domestic, shall take on at any foreign port in a territory not contiguous to the United States, with intent to bring thereto, a greater number of passengers than in the proportion of one to every two tons of said vessel, and that "the spaces appropriated for the use of said passengers, and which shall not be occupied by stores or other goods, not the personal baggage of such passengers," shall be in a certain specified proportion to the whole number of passengers allotted to such space.

The second section (section 4255 of the Revised Statutes) provides that "no such vessel shall have more than two tiers of berths;" and prescribes "the interval between the lowest part thereof and the deck or platform;" and that "the berths shall be well constructed, parallel with the sides of the vessel, and separated from each other by partitions;" and be of a certain length and width, and each only occu

pied by one passenger; with a provision for double berths to be occupied by more than one person under certain circumstances and restrictions. For any violation of this section it is declared that the master of the vessel and the owners thereof shall severally be liable to a penalty of five dollars for each passenger on board of such vessel on such voyage, to be recovered by the United States in any port when such vessel may arrive or depart.

The fifteenth section (section 4270 of the Revised Statutes) declares that "the amount of the several penalties imposed by the foregoing provisions regulating the carriage of passengers in merchant vessels shall be liens on the vessel violating those provisions; and such vessels shall be libeled therefor in any district or circuit court of the United States where such vessel shall arrive."

Each of these sections uses the word "vessel" without in any way limiting its application to a sail-vessel. Standing alone and without qualification, they would include in their provisions a steam as well as a sail-vessel. A vessel is none the less one on account of the manner of her propulsion, whether by oars, sails, or steam; and the Revised Statutes (section 3) declare that the term "includes every description of water-craft, or other artificial contrivance used or capable of being used as a means of transportation on water."

But the tenth section of the act (section 4264, Rev. St.; Act Feb. 27, 1877; 19 St. 250) provides that "the provisions, requisitions, penalties, and liens of this act relating to the space in vessels appropriated to the use of passengers are hereby extended and made applicable to all places appropriated to the use of steerage passengers in vessels propelled in whole or in part by steam, and navigating from, to, and between the ports, and in manner as in this act named, and to such vessels and the masters thereof;" and repeals so much of the steam-boat act of August 30, 1850, (10 St. 61,) as conflicts therewith; and further provides that "the space appropriated to the use of steerage passengers" on steam-vessels shall be "subject to the supervision and inspection of the collector of customs," as provided in section 9 of the act, in the case of other vessels.

In January, 1868, this statute came before the district court for the southern district of New York for construction, in the case of The Steamship Mahattan 2 Ben. 88, which was libeled on account of penalties alleged to have been incurred by the master and owner in the violation of this same section 2.

Judge Blatchford held that the section was not applicable to steamships, upon the familiar rule that the statute must be so construed