Constable v. National Steamship Company/Opinion of the Court
This case involves the liability of a steamship company for the loss by fire of a consignment of goods unloaded without personal notice to the consignee upon the wharf of a company other than the one owning the vessel.

By the limited liability act (Rev. St. § 4282), no ship owner is liable to answer for the loss of any merchandise shipped upon his vessel by reason of any fire 'happening to or on board the vessel, unless such fire is caused by the design or neglect of such owner;' and in the case of The Scotland, 105 U.S. 24, the exemptions and limitations of this act were held to apply to foreign as well as domestic vessels. A similar exemption from fire happening without the 'fault or privity' of the owner is contained in the British merchants' shipping act of 1854, § 503. The bill of lading in this case also contains an exemption of liability from loss caused by fire 'before loading in the ship or after unloading.' There is no comma after the word 'loading' or 'ship,' but obviously it should be read as if there were. In view of the fact that under no aspect of the case would the owner of the vessel be liable for the consequences of any fire occurring on board of such vessel without his fault, and that an attempt is made in this case to impose the liability, not of a warehouseman, but of a common carrier and insurer against fire, after the contract of carriage had been fully performed, it would seem that such liability ought not to be raised out of the contract in this case except upon clear evidence, and for the most cogent reasons. The liability of the company for the goods while upon the wharf is a mere incident to its liability for them while upon the ship, and, if the liability is more extensive under the incidental contract of storage than it was under the principal contract of carriage, it is an exception to the general rule that the incidental liability of a contracting party is not broader than his liability upon the principal contract.

Two facts are mainly relied upon in this case for holding the respondent company to the liabilities of an insurer:

(1) That the Egypt did not unload at her usual wharf, but at what is known as the 'Inman Pier,' and that no actual notice was given to the libelants of such unloading.

(2) In the application to the collector to allow the unpermitted cargo of the steamer to remain upon the wharf for 48 hours there was a stipulation that it should be 'at the sole risk of owners of said steamer.'

We shall proceed to dispose of these questions in their order.

1. As bearning upon the liability of the vessel after the cargo is unladen, the following exemptions in the bill of lading are pertinent and necessary to be considered:

(1) 'Fire before loading, in the ship, or after loading.'

(2) 'The National Steamship Company, Limited, or its agents or any of its servants, are not to be liable for any damage to any goods which is capable of being covered by insurance.'

(3) 'The goods to be taken from alongside by the consignee immediately the vessel is ready to discharge, or otherwise they will be landed by the master and deposited at the expense of the consignee, and at his risk of fire, loss, or injury, in the warehouse provided for that purpose, or in the public store, as the collector of the port of New York shall direct, and, when deposited in the warehouse or store, to be subject to storage, the collector of the port being hereby authorized to grant a general order for discharge immediately after entry of the ship.'

It is admitted that, under what may be termed the 'common law of the sea,' a delivery of the cargo, to discharge the carrier from his liability, must be made upon the usual wharf of the vessel, and actual notice be given to the consignee, if he be known. This was the ruling of this court in the case of The Tangier (Richardson v. Goddard) 23 How. 28, 39, and The Eddy, 5 Wall. 481, and is in conformity with the great weight of English and American authority. Hyde v. Navigation Co., 5 Term R. 389; Gibson v. Culver, 17 Wend. 305; 1 Pars. Shipp. & Adm. 222.

This rule, however, originated prior to the era of steam navigation, when a voyage from Liverpool to New York rarely consumed less than three weeks, when the time of the arrival of the vessel could not be forecast with any accuracy, when crews were discharged immediately upon her arrival, and the vessel was usually detained several weeks in the slow and laborious process of unloading taking on cargo, and refitting before setting out upon another voyage. Such methods of delivery were found wholly inadequate to the necessities of modern commerce, and particularly to the comparatively short voyages of the large transatlantic passenger steamers, which are kept permanently equipped with large and expensive crews, at a cost of several hundred dollars per day, and, in order to be profitably employed, must be kept in almost constant motion. In such cases the consignees of the cargo may be numbered by the hundreds, and a requirement that each consignee shall have a personal notice of the unloading of the cargo, in order to relieve the carrier from responsibility, would necessitate delays which might consume the entire profits of the voyage. It is of the utmost importance that the discharge of the cargo shall begin as soon as possible after the vessel arrives at her wharf, and if the consignee may sometimes be spurred to greater diligence, or put to some inconvenience, in removing his consignments, he receives a compensation in the lower rate of freight the vessel is thereby enabled to charge.

To obviate the difficulties attendant upon the ancient method of discharging, the regular steamship lines are in the habit of providing themselves with wharves having covered warehouses, into which the cargo is discharged, and of inserting in their bills of lading stipulations similar to those found in this case, viz. that the responsibility of the vessel shall cease after the goods are discharged, and thus of extending their statutory exemption from fire to such as may occur before loading or after unloading. In view of the fact that the piers of the regular steamship lines are well known to every importer, and the day of arrival of each steamer may be predicted almost to a certainty, we perceive nothing unreasonable in this stipulation. An importer having reason to anticipate the arrival of goods by a certain steamer, by putting himself in communication with the office of the company, may usually secure a notice of several hours of the actual arrival of the vessel at her wharf. It seems, too, by the sixteenth finding in this case, that, in lieu of a personal notice to each consignee or of publication through the papers, a custom has grown up in the port of New York of posting on a bulletin board in the customhouse a notice of the time and place of discharge. Taking all these facts into consideration, we see no impropriety in the company limiting itself to the liability of a warehouseman with respect to the goods so discharged into its own warehouse. Indeed, as applied to the usual wharf of the steamer, we do not understand it to be seriously questioned in this case. In fact, an argument appears to have been made in the district court to the effect that the limited liability act applied to this fire to exonerate the company; but the court held-and doubtless properly-that a fire originating upon the dock could not be said to have 'happened to the ship,' within the meaning of section 4282, even though the fire extended to and did some damage to the vessel. Morewood v. Pollok, 1 El. & Bl. 743. No good reason, however, is perceived why, if a wise policy requires the exemption of the carrier from a fire occurring without his fault, such exemption should not extend to any such fire while the goods are in his possession and under his control, or at any time before actual delivery to the consignee. But, however this may be, there can be no question of the power or the carrier to extend his statutory exemption from fire to such as occurs after the discharge of the cargo, by special stipulation to that effect in the bill of lading. Thus, in York Co. v. Central R. Co., 3 Wall. 107, it was held that the common-law liability of a carrier might be limited by special contract with the owner, and that the exemption in a bill of lading from losses by fire was sufficient to protect the carrier, if the fire were not occasioned by any want of due care on his part. See, also, The Lexington (New Jersey Steam Nav. Co. v. Merchants' Bank) 6 How. 344, 382; Railroad Co. v. Manufacturing Co., 16 Wall. 318; Phoenix Ins. Co. v. Erie & W. Transp. Co., 117 U.S. 312, 6 Sup. Ct. 750, 1176. Indeed, a general exemption from the consequences of fire has been held to extend, not only to fires happening on board the vessel, but to fires occurring to the goods while on the wharf awaiting transportation. Scott v. Steamboat Co., 19 Fed. 56.

No rule is better settled than that the delivery must be according to the custom and usage of the port, and such delivery will discharge the carrier of his responsibility. Thus, in Dixon v. Dunham, 14 Ill. 324, it was said that 'it was competent for the defendant [the carrier] to set up a custom or usage in the port of Chicago that goods should be delivered at the wharf selected by the master of the vessel, and that consignees should receive their goods there, with the averment of knowledge of such a custom in the plaintiff, and that this contract was made in accordance with it.' So, also, in Gatliffe v. Bourne, 4 Bing. N. C. 314, Chief Justice Tindall said: 'We know of no general rule of law which governs the delivery of a bill of goods under a bill of lading, where such delivery is not expressly according to the terms of the bill of lading, except that it must be a delivery according to the practice and custom usually observed in the port or place of delivery.' See, also, Farmers' & Mechanics' Bank v. Champlain Transp. Co., 23 Vt. 312; The Tangier, 1 Cliff. 396, Fed. Cas. No. 13,743; Richmond v. Steamboat Co., 87 N. Y. 240; Gibson v. Culver, 17 Wend. 305; The Boston, 1 Low. 464, Fed. Cas. No. 1,671. In The Sultana v. Chapman, 5 Wis. 454, there was a delivery at a place where the court held the boat had no right to leave the goods, and they were there destroyed. Under such circumstances, notwithstanding the exception in the bill of lading, the crrier was held not to be exempted from liability for the loss. 'He had no right,' said the court, 'to place these goods where he did; and having done so, and a loss having ensued, he must be held responsible for it, as being occasioned by his own negligence or misconduct.'

While there is no express provision in the bill of lading in this case dispensing with notice to the consignee, the provision that the goods shall be taken from alongside by the consignee immediately the vessel is ready to discharge is inconsistent with the idea of personal notice, since such a notice would necessitate a delay of one or two days in the discharge of the cargo, while the notices were being given. If the goods were not taken by the consignee, the carrier was authorized to denosit them at the risk of the consignee 'in the warehouse provided for that purpose,'-meaning, of course, the warehouse upon the pier. His obligation to give notice, if any such existed, must, under the terms of the bill of lading allowing an immediate discharge of the cargo, be contemporaneous with such discharge, and too late to be of any avail to the consignee. Such notice appears to have been given in this case, as the libelants' broker in his testimony, to which we have been referred, says: 'The invoice and bills of lading were sent down to me on the 31st of January, and the entries made out * * * and lodged in the customhouse at twenty-five minutes past two.' In Gleadlee v. Thompson, 56 N. Y. 194, it was said of a similar stipulation in a bill of lading, that the goods should be taken from alongside by the consignee immediately the vessel is ready to discharge: 'The landing of the goods upon the pier of the plaintiff, under the circumstances of this case, did not, we think change his relation to the goods, and divest him of his custody of them as a carrier. The privilege to make this disposition of them was secured to him by the bill of lading, unless the consignee was ready to take the goods from the ship whenever it was ready to discharge. It was not incumbent upon the plaintiff to give notice of a readiness to discharge the goods as a condition of his exercising the privilege of depositing them upon the pier. They, however, remained, after such deposit, in his custody as carrier, subject to the modified responsibility created by the contract until after notice had been given to the consignees of their arrival, and a reasonable time had elapsed for their removal. Meanwhile the defendants assumed the risk of 'fire, loss, or injury' to the goods, according to the contract, but the language used did not exempt the plaintiff from liability for an injury resulting from his own negligence.'

The cases relied upon by the libelants do not support their contention. In the case of The Santee, 7 Blatchf. 186, Fed. Cas. No. 12,530, a bill of lading covering a shipment of cotton contained a clause that the cotton should be at the risk of the consignee as soon as delivered from the tackles of the vessel at the port of destination. It appeared that the consignee had proper notice of the arrival of the vessel and of her discharge, and an opportunity, by reasonable diligence, to identify his cotton and receive it. The cotton was placed safely on the wharf when discharged, and a portion of it, belonging to the libelants, was removed by some other person, but was not actually delivered by the agents of the vessel to such other party. It was held that the vessel was not liable for the loss. It is true that, in delivering the opinion, it was said the carrier was still bound to give suitable information to the consignees to enable them to attend and receive the goods, and themselves assume and exercise that care and responsibility of which the carrier was to be relieved. But notice in this case was admitted to have been given, and the only question was whether, under the bill of lading, the carrier was liable after the cotton was discharged; and it was held that he was not, nor was he 'bound to watch the property after it passed beyond the vessel's tackles, to see that it was kept safe, or protected from removal, through mistake or design, by third persons.'

In Collins v. Burns, 63 N. Y. 1, the bill of lading contained a stipulation much like the one under consideration, and it was held that the clause providing for immediate discharge into the warehouse at the risk of the consignee of fire, loss, or injury did not exonerate the carrier for delivering goods to the wrong party, or to a drayman who was not authorized to receive them. The court of appeals, however, held expressly that the liability of defendants was that of warehousemen, and therefore that they were responsible only for negligence.

So in Tarbell v. Shipping Co., 110 N. Y. 170, 17 N. E. 721, the goods were discharged from the ship, and deposited on a proper wharf, and, after the consignees had had three full days to remove them, it was discovered that a part had been removed from the wharf by some one without the authority of the consignees. It was held that, as the loss occurred after the lapse of a reasonable time for removal of the goods by the consignees after notice of arrival, defendant was not liable as a common carrier, but that the defendant was negligent in omitting to take ordinary care of the goods, and allowing them to be removed without taking receipts. It was expressly held, however, that the liability of defendant as carrier terminated with the delivery of the goods upon the wharf, and that its liability arose from its negligence in delivering them to the wrong person.

It is claimed, however, that the berthing of this ship at a pier other than her own was in legal effect a deviation, which rendered the company an insurer of the cargo discharged at such pier without notice, until its actual delivery to the consignee. In the law maritime, a deviation is defined as a 'voluntary departure without necessity, or any reasonable cause, from the regular and usual course of the ship insured' (1 Bouv. Law Dict. 417; Hostetter v. Park, 137 U.S. 30, 40, 11 Sup. Ct. 1; Davis v. Garrett, 6 Bing. 716; Williams v. Grant, 1 Conn. 487); as, for instance, where a ship bound from New York to Norwich, Conn., went outside of Long Island, and lost her cargo in a storm (Crosby v. Fitch, 12 Conn. 410), or where a carrier is guilty of unnecessary delay in pursuing a voyage, or in the transportation of goods by rail (Michaels v. Railway, 30 N. Y. 564). But, if such deviation be a customary incident of the voyage, and according to the known usage of trade, it neither avoids a policy of insurance nor subjects the carrier to the responsibility of an insurer. Oliver v. Insurance Co., 7 Cranch, 487; Insurance Co. v. Catlett, 12 Wheat. 383. In Hostetter v. Park, 137 U.S. 30, 11 Sup. Ct. 1, it was held to be no deviation, in the Pittsburg and New Orleans barge trade, to land and tie up a tow of barges, and detach from the tow such barge or barges as were designated to take on cargo en route, and to tow the same to the several points where the cargo might be stored, it having been shown that such delays were within the general and established usage of the trade. So, in Gracie v. Insurance Co., 8 Cranch, 75, it was held to be no deviation to land goods at a lazaretto or quarantine station, if the usage of the trade permitted it, though by the bill of lading the goods were 'to be safely landed at Leghorn.' See also Phelps v. Hill (1891) 1 Q. B. 605.

'(3) That the regular English steamship lines usually dock at their own piers, but not always, and, in case of any emergency, dock elsewhere, and permit each other, when the necessity arises, to use the exclusive dock of each.' '(7) That for a month or more before January 31, 1883, respondent had been blocked up at its own pier, No. 39, in consequence of heavy cargoes, delays of its vessels by westerly winds and ice in the slips, and had, in consequence, been obliged to discharge two of its vessels at outside uncovered piers.' '(9) That steamers of regular lines, on their arrival at the port of New York, if their docks are blocked, are not kept in the stream longer than to enable them to berth elsewhere. If kept in the stream, consignees make great complaint. It was more costly to dock the Egypt at pier No. 36, but it was done to secure to the consignees a more prompt discharge and delivery of their goods.' '(26) That pier No. 36, North river, was a fit and proper place to discharge the steamship Egypt at the time in question and to discharge from her libelants' goods.'

If it be true that the pier of the respondent company was so blocked that the Egypt could not obtain access to it to discharge her cargo, it was, so far from being a deviation, a matter of ordinary prudence to select a neighboring pier for that purpose. Had this cargo been discharged at a remote, unusual, or inaccessible spot, or upon an uncovered pier, so that it was exposed to the weather or to any unusual hazard, and a loss had been incurred, we should not have hesitated to hold the carrier liable, notwithstanding the stipulation against the consequence of negligence in its bill of lading. Railroad Co. v. Lockwood, 17 Wall. 359; The Aline, 19 Fed. 875; The Boskenna Bay, 22 Fed. 662. No such question, however, is presented here. While the libel alleges that the loss occurred through the negligence of the respondent, no effort was made to prove this, and there is no finding that such was the case. Indeed, there is nothing to indicate that the Inman pier was not a perfectly proper place to discharge a cargo, or that it was not equipped with the usual appliances for the extinguishment of fires.

It is insisted, however, that libelants had a right to suppose that the Egypt would discharge her cargo at her regular pier, and that, while they might be bound to take notice of that fact, they were entitled, if she selected another pier, to a personal notice of the time and place of delivery, that an opportunity might be given them to be present and receive their consignments. But if, under the usages of trade or the necessities of the particular case, it was allowable and proper for the respondent to select another pier for the discharge of its cargo, we do not understand that its obligation to its consignees was thereby increased or modified, at least unless the libelants can show that they were actually prejudiced by such change. Practically the same questions are involved, viz. whether, if she had discharged at her own wharf, the company was bound to give notice before it could relieve itself of its responsibility. The real question still is whether, if she had gone to her own wharf, and the fire had occurred under the same circumstances, the vessel would have been liable for the loss. It was for the mutual advantage of the ship and the consignees that the cargo should be unloaded at the earliest possible moment,-the ship, that she might discharge herself of responsibility and take on her return cargo; the consignees, that they might secure their goods as soon as possible. The North river piers in that neighborhood were all used by steamers engaged in the Liverpool trade. The pier selected was only 600 feet from the regular pier of the line, and inquiry at that pier would doubtless have apprised libelants or their agent where the Egypt was actually discharging her cargo.

In addition to this, there is a finding that, upon obtaining the permits for the immediate unloading of the cargo, the respondent's customhouse broker caused a notice of the time and place of discharge to be posted on a bulletin board in the customhouse; that it is usual to post such notices, and is not usual to publish them in the newspapers. It is true there was an exception taken to this finding upon the ground that there was no evidence in support of it. The testimony, however, of the witness Ryer, the customhouse broker, was to the effect that he attended to getting out the usual papers for the respondent company to allow the discharge, and to passing all their steamers through the customhouse; that, on the arrival of the Egypt, the captain brought the manifest, took the usual oath, and made out applications for the usual permits to land goods, discharge at night, and to allow the goods to remain on the wharf. 'We get the permit taken out, signed by the naval officer and collector, and, after the permits are all taken out, we usually post a notice where the vessel will discharge [giving copy of notice]. I have no reason to suppose the notice was not posted in this case. It is done in every case. I am not positive whether it was done in this case, but it is a part of the routine of entering a vessel to do so. I have no doubt it was done.' The witness evidently had no definite recollection of this particular notice, but he had no doubt that he pursued his usual course in posting it. Respondent's agent also testifies that it was always usual to put up such notice at the customhouse. The customhouse broker for the libelants, Arnold, Constable & Co., testified in this connection that the invoice and bills of lading of the Egypt were sent down to him on January 31st; that the entries were made and lodged in the customhouse at 25 minutes past 2. 'I know where the board is where they put up notices of arrivals and the steamer's discharge. * * * That is around the corner going into the cashier's office. * * * It isn't any great distance. * * * I never look at that unless I want to find out where a vessel was discharged,-a strange vessel. Possibly I might look then. I have not looked there for years.' While this testimony is not direct and positive to the fact sought to be proven, it creates, when aided by the ordinary presumption arising from the course of business, a strong probability that the notice was posted. The practice, even of a private office, if well established, is presumed to have been followed in individual cases, and is accepted as sufficient proof of the fact in question when primary evidence of such fact is wanting. 1 Greenl. Ev. § 40; Nicholls v. Webb, 8 Wheat. 326; Price v. Torrington, 1 Salk. 285; Champneys v. Peck, 1 Starkie, 404; Pritt v. Fairclough, 3 Camp. 305; Doe v. Turford, 3 Barn. & Adol. 890, 895; Dana v. Kemble, 19 Pick. 112. We think the conclusion of the court was justified by the evidence in this particular.

But, even supposing that actual notice had been given, it could not have been given before the arrival of the ship, and the names of the consignees were known, and it would then have been too late for the libelants to take their goods away. The findings are that the Egypt was entered at the customhouse at 45 minutes past 1 in the afternoon, that she began to discharge her cargo at half past 4, and that libelants' merchandise was discharged prior to the fire; (15) and that between the time of the arrival of the steamer and the destruction of the merchandise there was not sufficient time in which to enter the libelants' goods at the customhouse, pay the duties thereon, and obtain the requisite permits for the removal of the same. If, then, it be true that libelants could not have removed their goods before the fire, it is difficult to see how the want of a notice could have contributed to the loss. We are clearly of the opinion that, under the custom of the port and exigencies of the service, there was no obligation to delay the discharge of the cargo until notice could be given, and a reasonable time had elapsed before the goods could be taken away. While the nineteenth finding is to the effect that libelants had, before this consignment, received from the respondent company six other consignments ander bills of lading in the same form, all of which were landed and discharged on their own pier, there is nothing to indicate that libelants took any steps whatever upon the faith of such previous practice, or made any inquiries as to when the Egypt was expected, or at what pier she would discharge her cargo. Indeed, while their own broker was at the customhouse attending to the entry of these goods, he did not even take the trouble to look at the bulletin to see where the Egypt was being discharged. If libelants had shown that, relying upon the previous practice, they were ready at pier No. 36 to receive the cargo, or were misled by the discharge at pier No. 39, they would have shown a much stronger title to recover. The inference is irresistible that, even if the Egypt had discharged at her own wharf, they would not have been there to receive, and could not have received, their consignments, which would have been stored in the company's warehouse, and exposed to the same danger of fire; in other words, the delivery at the Inman dock did not in any legal sense contribute to the loss. There was no stipulation in the bill of lading that the Egypt would unload at No. 36, from which a duty to give notice might be implied, if she were compelled to select another pier.

Upon the facts of this case exhibiting a necessity for a discharge elsewhere than at her own pier, and in the absence of any evidence that libelants were prejudiced by the failure of the Egypt to discharge at her usual wharf, we think there was no breach of duty on the part of respondent in this particular.

2. Another serious question, however, is presented by the proviso in the application to allow the unpermitted cargo to remain upon the wharf, viz. that it should remain 'at the sole risk of owners of said steamer, who will pay the consignee or owner the value of such cargo, respectively, as may be stolen, burned, or otherwise lost, and will also pay all duties on cargo which may be in any way lost by so remaining.'

It seems that, upon the arrival of a transatlantic steamer, it is usual to apply for and obtain a general order to allow to be landed and sent to the public store (not the warehouse on the wharf) all packages for which no special permit or order shall have been received; also, a permit to allow such portion of the cargo as in unladen, but not permitted, to remain upon the wharf for 48 hours from the time of the granting of the above general order, at the expiration of which time they are sent to the proper general order store; and also a special license to permit the cargo to be unladen at night. These orders, licenses, and permits are granted in pursuance of the general regulations of the treasury department.

Granting that the request made by the company is, upon its face, broad enough to impose upon the company the responsibility for goods lost by fire, it must be construed in connection with the following stipulation upon the same subject in the bill of lading, viz.: 'The goods to be taken from alongside by the consignee immediately the vessel is ready to discharge, * * * the collector of the port being hereby authorized to grant a general order for discharge immediately after entry of the ship. The United States treasury having given permission for goods to remain forty-eight hours on wharf at New York, any goods so left by consignee will be at his or their risk of fire, loss, or injury.'

Some criticism is made upon the words 'so left by consignee,' libelants insisting that the word 'left' implies a voluntary leaving of the cargo upon the wharf after notice of the discharge of the same has been received by the consignee. We are not inclined, however, to affix to it such a technical meaning. In view of the fact that the object of the stipulation was evidently to exempt the carrier from responsibility for the occurring at any time after the discharge of the cargo, and particularly during the 48 hours it was permitted to remain upon the wharf, which 48 hours, under the terms of the permit, began to run from the time the general order to unload was granted, we think it clear that it was intended to apply during this time, whether the goods were technically 'left' by the consignee or not, and that the proviso should be interpreted as if it read: 'The United States treasury having given permission for goods to remain forty-eight hours on wharf at New York, any goods so remaining will be at consignee's risk of fire, loss, or injury.' This permission, though granted at the request of the shipowner, and primarily for his benefit, is really of more value to the consignees, since a convenient opportunity is there afforded them to examine their goods, and they are saved the expense of cartage to a bonded warehouse, and storage therein.

The question presented, then, is substantially this: A. and B. agree that, in a certain contingency, A. shall assume the risk of the loss of his goods by fire. Subsequently B. agrees with C. that, in precisely the same contingency, he shall be responsible to A. for the loss of the same goods. Waiving the question whether this means any more than that he shall be responsible so far as C. is concerned, does the latter contract supersede the earlier? Unquestionably it would, if it were between the same parties. In this case, however, the first contract was made by B. (the respondent) in full contemplation of the fact that it would be obliged to enter into the second, and for the special purpose of providing against it. Now, to say that, having entered into the first contract, knowing that it would have to enter into a second one wholly inconsistent with the first and intending to be bound by it, is scarcely creditable to the intelligence of its agent. Libel ants, too, though parties, or rather privies, to the first contract, were not parties to the second, and, so far as it appears, did not even know that it was or would be entered into, except as they may have known a general usage to protect officers in this manner. The position of the parties had not changed in the interval; no new consideration moved from the libelants; and, while the contract was nominally made for their benefit, this gift of the collector was purely a voluntary one. Indeed, the contract seems really to have been for the protection of the collector himself. Under these circumstances, it is clearly the duty of this court to harmonize these contracts, if it be possible to do so. It is by no means a universal rule that a person may sue upon a contract made for his benefit, to which he was not a party. Hendricks v. Lindsay, 93 U.S. 143; National Bank v. Grand Lodge, 98 U.S. 123; Keller v. Ashford, 133 U.S. 610, 10 Sup. Ct. 494; Cragin v. Lovell, 109 U.S. 194, 3 Sup. Ct. 132; Willard v. Wood, 135 U.S. 309, 10 Sup. Ct. 831. No case has gone so far as to hold that, where the person for whose benefit the contract is made has himself, or by his privy in estate, entered into a contract inconsistent with this, he may repudiate such prior contract, and claim the benefit of the second, simply because it has become for his interest to do so. We know of no principle which authorizes one party to an agreement to vary it, even against his own interest, without the consent of the other. As observed by the court of appeals of New York in Simson v. Brown, 68 N. Y. 355: 'It is not every promise made by one to another, from the performance of which a benefit may inure to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited.' See, also, National Bank v. Grand Lodge, 98 U.S. 123; Garnsey v. Rogers, 47 N. Y. 233.

The principle above announced was still further limited by the court of appeals in Vrooman v. Turner, 69 N. Y. 280, in which it was said that, to give a third party who may derive a benefit from the performance of a promise an action, there must be-First, an intent by the promisor to secure some benefit to the third party; and, second, some privity between the two (the promisor and the party to be benefited), and some obligation or duty owing from the promisor to the latter, which would give him a legal or equitable claim to the benefit of the promise, or an equivalent to him personally.'

It is necessary to a correct understanding of this contract to examine somewhat in detail the circumstances under which it was entered into, and the authority under which the collector acted in prescribing its terms. By Rev. St. §§ 2867, 2869, general authority is given to the collector to authorize the unloading of vessels arriving within the limits of his collection districts, and to grant a permit to land the merchandise. By section 2966 the collector is authorized to take possession of such merchandise, and deposit the same in bonded warehouses, and by section 2969 all merchandise of which the collector shall take possession under these provisions shall be kept with due and reasonable care at the charge and risk of the owner. By section 2871 the collector, 'upon or after the issuing of a general order [for the unloading of the cargo], shall grant, upon proper application therefor, a special license to unlade the cargo of said vessel at night, that is to say, between sunset and sunrise,' upon a bond of indemnity being given, etc.; 'and any liability of the master or owner of any such steamship to the owner or consignee of any merchandise landed from her shall not be affected by the granting of such special license or of any general order, but such liability shall continue until the merchandise is properly removed from the dock whereon the same may be landed.' There is certainly nothing here which contemplates that the owner of the vessel shall enter into any independent obligation, assuming new liabilities, or expanding in any way existing liabilities, to the consignee. The object of the statute is clearly to preserve the status quo,-to continue such liability as already exists, and to preclude the shipowner from claiming that, by the action of the collector, his liability to the owner of the merchandise is impaired or restricted. In the language of the statute, any previous liability 'shall not be affected,' 'but such liability shall continue until the merchandise is properly removed from the dock whereon the same may be landed.' It is true that no mention is here made of the power of the collector to allow the unpermitted cargo to remain 48 hours upon the wharf, and no such power is expressly given; but by section 2989 'the secretary of the treasury may from time to time establish such rules and regulations, not inconsistent with law, for the due execution of the provisions of this chapter, and to secure a just accountability under the same as he may deem to be expedient and necessary.' While there is nothing in the statute allowing any fixed time to elapse between the unlading of the goods and their removal to a bonded warehouse, the statute does not prohibit such time being allowed, and, as some interval must necessarily elapse for the examination and appraisement of the goods designged for immediate delivery to the importer,-duties which can most readily be performed while the goods are yet upon the wharf,-and as it is for the mutual benefit of the government and consignee to allow some such interval of time to elapse, the secretary of the treasury is doubtless vested with a certain discretion in that particular, under the power given him by section 2989, and also by section 251, which authorizes him to make rules and regulations not inconsistent with law in carrying out the provisions of law relating to raising revenue from imports.

In pursuance of this authority, the secretary of the treasury, on May 5, 1877, adopted certain regulations concerning the discharge of steamships, of which the following, only, is material: 'Goods will be delivered from the docks by the inspector as fast as permits therefor are presented, and such as are discharged, for which no delivery permit has been received, will be sent to the general-order store. The collector may, at the request of the master, agent, or owner of the vessel, allow goods landed, but not 'permitted' to remain on the docks, at the sole risk of the owner of the vessel, not longer than forty-eight hours from the time of their discharge, upon the production of evidence that the owner of the vessel assumes the risk of the goods allowed to remain, and agrees to pay the duties on any goods which may be lost by so remaining. This request must be made in writing to the collector, and must state that, if the permission is granted, the goods will be at the risk of the owner of the vessel, that he will pay all duties on goods that may be lost, and must be signed by the owner of the vessel or his agent duly authorized. The consent of the collector thereto must also be granted in writing. At the expiration of the forty-eight hours, no permit having been received for their delivery by the inspector, the collector shall send the goods to the general-order store to have the same weighed or gauged, if required.'

In this connection it must be borne in mind that the secretary of the treasury is an officer of the government; that his powers are limited by law; that his duty is to protect the revenues of the government, and to prevent smuggling or other illegal practices, whereby the government may be defrauded of its revenue; and that he owes no duty to individuals beyond seeing that their rights are not prejudiced any further than is necessary by the action of the customs officers. He is neither the agent of the vessel nor of the importer, but stands between them, representing only the government, and charged only with the collection of its revenue. The above regulation, when carefully examined, is consistent with this view. It requires the collector to allow the goods to remain upon the docks 'at the sole risk of the owner of the vessel,' and requires the latter to assume 'the risk of the goods allowed to remain,' and to agree 'to pay the duty on any goods which may be lost by so remaining.' It is obvious from the context that the risk referred to is the risk as between the owner of the vessel and the government, viz. the risk of paying duties upon such goods as may be lost during the 48 hours. The permit is granted primarily for the benefit and at the request of the vessel, which retains its lien for freight for the goods so long as they remain on the dock. The government has as yet no claim for duties against the consignee of the goods, and it is just that the owner of the vessel should assume the liability for duties. There is nothing here indicating an intention of imposing any liability upon the ship owner for the goods themselves, except so far as to protect the government from loss. The loss referred to is probably a loss by theft, to which these warehouses are peculiarly subject, since, if the goods were destroyed by fire, the consignee would, under section 2984, be entitled to an abatement or refund of duties. This construction of the ship owner's obligation is rather emphasized than otherwise by the subsequent clause of the regulation: 'This request must be made in writing to the collector, and must state that if the permission is granted the goods will be at the risk of the owner of the vessel; that he will pay all duties on goods which may be lost,' etc. The risk he thus assumes is the risk of paying the duties upon goods which may be lost. There is nothing in these instructions, interpreted in the light of the statute and of the powers of the collector, to justify the inference that it was intended to impose any new or different obligation upon the owner of the vessel, with respect to the consignees of the merchandise.

In the forms prescribed, probably by the department, to carry out these regulations, however, there is an apparent departure both from the language of the statute and the treasury regulations in the obligation the owner of the vessel is required to assume: 'To pay to the consignee or owner the value of such cargo, respectively, as may be stolen, burned, or otherwise lost, and also pay all duties on cargo which may be in any way lost by so remaining.' Here the obligation to indemnify the consignee first appears, and occupies the most prominent place, and is extended to goods stolen, burned, or otherwise lost, while the obligation to pay duties is mentioned rather incidentally than otherwise. Whereever or by whomsoever these forms were prepared, we must, for the purposes of this case, treat them as the act of the collector, who, if this contract be construed as intended for the protection of any one but the collector himself, clearly exceeded his authority in requiring the owner of the vessel to assume, as against the consignee, the risk of their being burned while upon the wharf. As the circuit court finds that 'such application was in the form required by said collector, without which permit would not be granted, and the entire cargo would be sent to the public store,' it cannot be treated as the voluntary act of the ship owner any further than this contract or obligation conformed to the requirements of the statute or the treasury regulations, which were designed, as we have already stated, only to preserve the previous rights of the consignee against the owner of the steamship, unimpaired by the action of the collector. Beyond this, it must be treated either as obtained by duress, or so plainly inconsistent with the previous agreement of the parties inter sese as to be of no avail to the consignee.

It is a familiar doctrine in this court that a bond or other obligation extorted by a public officer, under color of his office, cannot be enforced, and the remarks of this court in the case of U.S. v. Tingey, 5 Pet. 115, are pertinent in this connection. In this case the navy department caused a form of bond, not prescribed by law, to be prepared and transmitted to one Deblois, a person to whom the disbursement of public moneys was intrusted as purser, to secure fidelity in his official duties, with a condition that it should be executed by him with sufficient sureties before he should be permitted to remain in office, or to receive the pay or emoluments attached to the office. 'The substance of this plea,' said the court, 'is that the bond, with the above condition, variant from that prescribed by law, was, under color of office, extorted from Deblois and his sureties, contrary to the statute, by the then secretary of the navy, as the condition of his remaining in the office of purser, and receiving its emoluments. There is no pretense, then, to say that it was a bond voluntarily given, or that, though different from the form prescribed by statute, it was received and executed without objection. It was demanded of the party upon the peril of losing his office; it was extorted under color of office, against the requisitions of the statute. It was plainly, then, an illegal bond, for no officer of the government has a right, by color of his office, to require from any subordinate officer, as a condition of holding office, that he should execute a bond with a condition different from that prescribed by law. That would be, not to execute, but to supersede, the requisitions of law.'

A distinction is drawn in this class of cases between a bond compulsorily executed, as in the case under consideration, and a bond or other obligation voluntarily given to the government, for which there is no statutory authority. In this latter case the bond has been held to be valid. U.S. v. Bradley, 10 Pet. 343, 358; U.S. v. Hodson, 10 Wall. 395.

(1) That the stipulation in the bill of lading that respondent should not be liable for a fire happening after unloading the cargo was reasonable and valid.

(2) That the discharge of the cargo at the Inman pier was not, in the eye of the law, a deviation such as to render the carrier an insurer of the goods so unladen.

(3) That, if any notice of such unloading was required at all, the bulletin posted in the customhouse was sufficient, under the practice and usages of the port of New York.

(4) That libelants, having taken no steps upon the faith of the cargo being unladen at respondent's pier, were not prejudiced by the change.

(5) That the agreement of the respondent with the collector of customs to pay the consignee the value of the goods was not one of which the libelants could avail themselves as adding to the obligations of their contract with respondent.

The decree of the circuit court is therefore affirmed.

Notes