Pearce v. Wabash Railroad , 89 Mo. App. 437 ( 1901 )

BLAND, P. J.

Briefly stated, the facts are, respondent shipped in bond via the Canadian Pacific Eailway Company and its connecting steamship line, four boxes of curios from Yokohama, Japan, consigned to Wilfred Schade & Co., destination port of St. Louis, Missouri, and prepaid the freight charges for the entire route. Erom Yokohama the goods were carried by steamship to Vancouver, British Columbia, and there delivered to the Canadian Pacific Eailway Company and were by it placed in a bonded car, duly sealed. Eor its own convenience, without the knowledge or consent of the plaintiff or the consignee, the Canadian Pacific Eailway Company changed the bonded destination of the goods to the port of St. Paul, Minnesota, and it and its connecting line, the Minneapolis, St. Paul & Sault St. Marie Eailway Company carried the goods to St. Paul and delivered them to the United States customhouse at that point. The United State customs officials at the port of St. Paul received the goods, opened the packages, examined them and appraised their contents and assessed the import duties and charges on the goods at $264.31. The Minneapolis, St. Paul & Sault St. Marie Railway Company paid the customs dues so assessed, took the goods from the customhouse as repacked by the customhouse officials and billed them to the Chicago, Milwaukee & St. Paul Railway Company to be by it forwarded to Given, Iowa, where the latter company connects with the appellant railway company. The $264.31 import dues were incorporated in the waybill furnished the Chicago, Milwaukee & St. Paul Railway Company by the Minneapolis, etc., Railway Company as advance charges. These charges, the Chicago, etc., Railway Company paid to the Minneapolis, etc., Railway Company. The Chicago, etc., Railway Company carried the goods to Given, Iowa, and there delivered them to the appellant railway company to be carried to their destination, St. Louis, Missouri, and furnished it a waybill showing the payment by the Chicago, etc., Railway Company of the $264.31 as advance charges, which the appellant agreed to pay and afterwards did pay.

The appellant carried the goods to St. Louis in the same condition they were in when it received them, and offered to deliver them to the respondent on the payment by him of the advance charges of $264.31. Respondent discovered that the packages had been opened after' their shipment from Yokohama, and refused to pay the charges unless he was given opportunity to open the packages and inspect the goods to ascertain their condition. The appellant refused to permit the inspection in advance of the payment of charges, and respondent replevied the goods and took them into his possession. On opening the packages he discovered that goods of the value of $350 had been abstracted and that others had been damaged. Item thirteen of the agreed statement of facts is as follows: “That when said Wabash Railway Company, defendant herein, received said goods from the Chicago, Milwaukee & St. Paul Railway Company, as hereinbefore stated, said Wabash Railway Company, defendant herein, became responsible under its traffic arrangements for the payment of said sum of $264.31 to the said Chicago, Milwaukee & St. Paul Railway Company, and did not at the time know that said charges were other than the usual and ordinary freight charges upon said goods advanced by each carrier of the same from the point of shipment to the place of delivery.” And the first clause of the fourteenth item reads as follows: “That the Wabash Railway Company, defendant herein, transported said goods in' the month of June, 1895, in due time and in good order from said Given, in the State of Iowa, over its line of railway to the city of St. Louis.” The evidence tends to prove that the loss of some of the goods and the damage to others were occasioned through the fault or negligence of the customhouse officials at St. Paul, and there is no evidence whatever that any of such damage is attributable to the wrong or negligence of the appellant ; on the contrary, it is admitted that the goods arrived at St. Louis in the same condition in which they were when received by the defendant at Given, Iowa. The original contract of shipment expressly provides that each carrier in the line, beginning at Vancouver and ending at St. Louis, “shall be liable only for whatever negligent act was committed by it upon its own line and no other.” In this state of the case the defendant is not liable for the loss or for damages to the goods (Nines v. Railroad Co., 107 Mo. 475) and respondent can not offset his damages against the advanced charges paid by appellant.

Respondent bases his right to the goods on the assumption that the entry of the goods at the customhouse at St. Paul was not only unnecessary, but was in violation of the contract of shipment and prejudicial to him; that the payment of the customs dues at St. Paul was not necessary or incidental to their transportation. A carrier may pay to a connecting- carrier' charges that the latter has paid and retain possession of the goods for its reimbursement, where the advance charges were such as were incident to the transportation of the goods and were necessary to be paid in order to continue them in transit; such as freight and warehouse charges and for the discharge of matured and valid liens on the goods, created by law or by the owner for the non-payment of which the transit of the goods has been stopped or their possession withheld from the carrier. Steamboat Virginia v. Craft, 25 Mo. 76; Richardson v. Risk, 104 Mass. 156; Redfield on Carriers, 282; Hutchinson on Carriers. But the payment of the lien in order to continue the transportation is not obligatory on the carrier and, if made without the consent of the owner, is at its risk. The United States has a specific statutory lien upon the importation for the payment of import duties, and one which had to be discharged before the goods could be lawfully delivered to the respondent or to the consignee. The value of this lien could only be ascertained by inspection and appraisement by the authorized officials of some customhouse at a port of entry. U. S. R. S. 1878, (2 Ed.), section 3097, requires a carrier having imported goods in charge, arriving on the north or northwestern frontier, to report them to the collector in charge of the port of entry in the district in which the goods shall first arrive, accompanied with manifest and entries, and it is made the duty of the collector of such ports to exercise and discharge the same duties as if the importation had been made by sea, but this section has no application to imports brought into the United States' in bond. It is admitted, in the agreed statement of facts, and shown by the testimony, that the goods were shipped in bond from Yokohama, and the evidence is that the four boxes were carefully packed, strapped and sealed, and marked “shipped in bond,” and that a customs clearance in quadruplicate, signed and sworn to, was indorsed or signed by John McLean, consul general at Kanagawa (which is Yokohama), showing the entrance of the goods was to be made at the port of St. Louis. Under this state of facts it was clear that the goods were entitled to direct importation to the port of St. Louis, as provided by U. S. R. S. 1818, (2 Ed.), sec. 3102, and, as all the railroads that carried the goods were bonded roads there was no occasion for their diversion to the port of St. Paul.

The Canadian Pacific Railway Company had in its possession one of the quadruplicate clearance certificates and was by it and by the marks and brands on the boxes apprised of the fact that the goods were shipped in bond and entitled to continuous and unbroken carriage to the port of St. Louis, but for its own convenience, as stated in the agreed statement of facts, changed the bonded destination of the goods to the port of St. Paul. After this diversion and the assessment of the customs due on the importation by the collector of customs at St. Paul, it was indispensable, to regain possession of the goods so as to continue their transit, that the import duties should be paid at St. Paul. And the contention of appellant is that as their payment was in discharge of a lien the United States had on the goods, which in any event had to be discharged before the respondent could gain possession of them, that he was not prejudiced by the payment made at St. Paul and that as appellant could only have the goods for carriage by agreeing to pay the amount of customs dues, that a lien for such advancement should be declared in its favor. In view of the fact that the appellant agreed.to pay the amount under the impression that it represented advance charges for the carriage of the goods by its predecessors and had no knowledge or information that it represented customs dues, it seems somewhat of a hardship to deny the relief prayed for. But legal and equitable principles and rules can not be stretched beyond proper bounds to relieve a litigant of every hardship in which a court of law or equity may find him. The lien of the United States for import duties was not to. be discharged at St. Paul but at St. Louis. The amount of the lien was not to be ascertained at St. Paul but at St. Louis, and they were not to become due or payable until the goods were carried to their final destination and delivered at the port of St. Louis for appraisement and assessment of import duties. Their payment at St. Paul was not necessary nor an incident to the transportation of the goods to the place of destination; on the contrary, the diversion of the goods to the port of St. Paul, which made the payment of the assessed dues necessary to continue the goods in transit, was in violation of the United States custom laws as well as of the contract of shipments made with the Canadian Pacific Eailway Company. The appellant, as a succeeding carrier, to establish a right of lien must derive that right through the wrongful diversion of the bonded destination of the goods by the Canadian Pacific Eailway Company; though innocent of this wrong, it is as much affected by it in respect to the right of the lien on the goods as if it had prepetrated the wrongful diversion. Its rights in this regard are derivative and can rise no higher than their original source — the Canadian Pacific Eailway Company. An equity can not be founded upon a wrong, nor derived from a violation of both law and contract. Whatever rights, if any, appellant may have to recover the amount it has paid for respondent’s use and benefit, we think it is clear, both upon reason and authority, that it has no lien on the goods replevied for reimbursement, and affirm the judgment.

Judge Goode concurs in a separate opinion; Judge JBorid dissents and also files separate opinion.