Fletcher, Respondent, vs. St. Louis Marine Insurance Company, Appellant, 18 Mo. 193

RylAND, Judge,' delivered the opinion of. the court. 1. Tbe questions, as they appear in tills case, are mainly in regard to wbat constitutes a delivery, and whether reshipment makes the policy void. I will dispose of the last question first.

This was an open policy, in which the plaintiff, Fletcher, was insured in the sum of fifty thousand dollars, lost or not lost, for account and risk of whom it may concern, on such shipments as he may make, or may be made and indorsed thereon, of produce, stock, merchandise or other commodities, from the first day of February, 1849, to the first day of December, 1849, from Lexington or any landing on the Missouri river, to any other point on said river, St.

Louis, Pittsburgh, New Orleans, or any other landing on the Mississippi or Ohio rivers ; and to the Atlantic cities by way of New Orleans, Pittsburgh, Cincinnati and the lakes, or Chicago and the lakes, with privilege of reshipping at all times and places, on good sail vessels or steamboats, or upon keel-boats on the Ohio in low water, &c. This was a shipment of hemp from Dover landing, on the Missouri, and from Waverly, on the Missouri river, on the steamboat Amelia to St. Louis. The Amelia resliipped the hemp at Jefferson city, on the Missouri river, on board the steamboat Kit Carson.

The petition of the plaintiff states this fact of reshipment on the Kit Carson at Jefferson city, and the answer sets up this reshipment as a deviation and avoidance of the policy.

The words of the answer on this point are as follows : “ That upon said shipment being made upon said steamboat Amelia, the said plaintiff received from said boat a bill of lading therefor, which hill of lading is now in the possession of said plaintiff, and which the said defendant requires to be produced by him on the trial of said cause ; that by the said bill of lading, no privilege of reshipping upon -any other boat was given to said steamboat Amelia, but the contract between the said plaintiff and said steamboat was, that the same should be carried by said steamboat Amelia to St.

Louis ; that if said steamboat Amelia had faithfully performed her contract in that behalf, no accident by fire would have occurred to said hemp ; but that the said steamboat, after having proceeded on her said voyage as far as Jefferson city, in violation of her said contract, and to the prejudice of the rights of said defendant, did, at the said port of Jefferson city, reship the said merchandise on board of the steamboat Kit Carson, though said steamboat Amelia was not compelled thereto by any unavoidable dangers of the river, nor by fire.

Defendant states that by reason of said transhipment, the said hemp ceased to be covered by said policy ; the said defendant states that, in the first place, by reason and means of said transhipment of said hemp from said steamboat Amelia, the same ceased to be covered by said policy, and all liability of said defendant on account of the same was ended.” Now to this answer it may be said that, by the very terms of the policy, this privilege is given : “ to reship at all times and places” — words sufficiently comprehensive to include this reshipment.

This policy was designed by the parties to be full, broad and ample enough to protect the property shipped by the plaintiff to the amount specified, and between the times specified. This reshipment, then, cannot be claimed as a deviation under this policy, and the answer does not set up nor rely upon the delay or stopping of the Amelia, or upon her abandonment of the voyage at Jefferson city, even if that would benefit the defendant. Upon this point then, it is the opinion of this court, that the court below committed no error. 2.

On the second point, as to the delivery of the goods, and whether a landing of the hemp in part exonerates the company of underwriters or not. In the opinion of this court, a landing of a part of the cargo insured, will not exonerate the Insurance company from a loss incurred on such part, unless that part had been received by the consignee into his own custody. The boat or vessel cannot split up tbe liability of tbe insurers or tbe rights of tbe assured in this manner, by delivering a portion of tbe cargo. Tbe duty of tbe boat is to land safely tbe property carried, in a reasonable time.

To land tbe bemp which it was carrying for the assured in this ease, does not mean only a portion of tbe bemp. In Smith v. Gardner, 1 Johns. Cases, 141, Lansing, chief justice, said : “On account of the nature of the voyage, the insurance, in point of time, was extended twenty-four hours after tbe goods should be landed. A protection against the risk of seizure until they should be landed, was. a direct and important stipulation in the contract, and the insurance being entire, we are of opinion that the risk continued on the entire goods until twenty-four hours after all of them were landed.

This is the correct sense of the terms of tbe policy, and it would be inconvenient to admit a different construction. The risk cannot reasonably be divided and applied to separate parcels.

It would be difficult, if not impossible, under the usual circumstances of such a voyage, to descend to the minute details which would be requisite, and to distinguish the precise time of landing each article.” “ The undertaking of a common carrier to transport goods to a particular destination, necessarily includes the duty of delivering them in safety, and his obligation is to deliver them safely at all events, excepting tbe goods be lost by tbe act of God or tbe public enemy.

It is not enough that tbe goods be carried in safety to tbe place of delivery, but the carrier must, and without demand upon him, deliver; and he is not entitled to freight until the contract for a complete delivery is performed.” Angel on Com. Carriers, sec. 282. “When tbe responsibility has begun, it continues until there has been a due delivery by tbe carrier, or be has discharged himself of the custody of the goods in his character of common carrier.” 2 Kent’s Com. 604. 4 T. R. 581.

In order to discharge the master from his responsibility, he must allege and prove, either that he delivered the goods to the consignees, “ according to the express terms of the bill of lading, or else that he delivered them according to the practice and custom usually observed in the port of delivery.” 2 Arnold on Ins. 779. The risk of the vessel is at the charge of the insurers until her entry into port, and the risk of the goods until they have been landed on the quay at the place of their destination. Emerigon, 586. 8.

But we know of no general rule of law which governs the delivery of goods under a bill of lading, where such delivery is not expressly in accordance with 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. The custom contended for, that the landing of a part of the cargo is the landing of the whole, and consequently a discharge of the risk on the policy, is very much of kin to the custom set up in the case of Yates v.

Pym, 6 Taunton’s Rep. 446, which was an action on a warranty given on a sale of prime singed bacon. Evidence was offered to show that, by a practice in trade, bacon to a certain degree tainted, was received as prime singed bacon ; and of another practice by which the purchaser was precluded from all remedy, if he did not promptly discover the objection and point it out. Heath, J., rejected this evidence.

Gibbs, chief justice, said: “I cannot think that any custom of trade can be admissible to prove the proposition contended for.” Now the receiving of any part of the cargo by the consignee into his own custody and charge, should operate to discharge the risk upon so much. Here, under very favorable instructions for the defendant, this delivery and reception were left to the jury. They heard all the evidence ; they -were competent to understand and determine this matter aright. The judgment of the court is, with the concurrence of Judge Scott, affirmed. Judge Gamble not sitting.