Henry Billings Brown

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”