[269 U.S. 158, 159] Messrs. A. A. McLaughlin, of Washington, D. C., and R. M. Hughes, Jr., of Norfolk, Va., for petitioner.
Mr. C. M. Bain, of Norfolk, Va., for respondent.
Mr. Justice BUTLER delivered the opinion of the Court.
There is here for review a judgment of the Supreme Court of Appeals of Virginia which affirmed a judgment [269 U.S. 158, 160] of the court of law and chancery against petitioner for $1,046.88. 138 Va. 377, 122 S. E. 113. June 24, 1918, at New Bern, N. C., respondent delivered to petitioner, then operating the Norfolk Southern Railroad, a carload of scrap iron for transportation over that line and connecting lines to Clarksburg, W. Va. Petitioner issued a bill of lading, consigning the shipment to the order of respondent, 'notify George Yampolsky at Clarksburg.' It contained a clause requiring surrender of the bill of lading properly indorsed before delivery of the property, and provided that:
The shipment arrived at Clarksburg, July 15, 1918, and on that day was delivered to Yampolsky without surrender of the bill of lading and without the knowledge of the respondent, who at all times has been its lawful holder. No claim was made by respondent until March 5, 1920
The Act of Congress of March 4, 1915 (known as the first Cummins Amendment), c. 176, 38 Stat. 1196, 1197 (Comp. St. 8604a), amending section 20 of the Act to Regulate Commerce, requires a common carrier, receiving property for transportation in interstate commerce, to issue a receipt or bill of lading therefor, and makes it liable to the holder for any loss, damage, or injury to such property, and contains these provisos:
There is presented the question whether this case is one in which the right of recovery may be made to depend upon the making of claim as required by the bill of lading. The provisos in section 20 have been recently considered by this court in Barrett v. Van Pelt, 268 U.S. 85 , 45 S. Ct. 437. It was there pointed out that the purpose of the second proviso is to take some cases out of the general rule declared by the first proviso. And, in view of the inapt language and defective structure of the second, it was held that the word 'damaged' should be read 'damage,' and that the comma after 'unloaded' should be eliminated. It was also held that 'carelessness or negligence' is an element in each case of loss, damage, or injury there named. The judgment now before us was given prior to that decision. The state court held that the damage resulting to respondent from misdelivery occurred while the shipment was 'in transit,' within the meaning of the proviso, and that therefore the provision of the bill of lading requiring claim to be made was invalid. It said that 'in transit' means at any time after the property has been received by the initial carrier and before delivery in accordance with the contract of carriage.
But that view cannot be sustained. The loss was due solely to misdelivery; that is 'a failure to make delivery' in accordance with the bill of lading. Georgia, Fla. & Ala. Ry. v. Blish Co., 241 U.S. 190, 195 , 36 S. Ct. 541. As construed by this court, the second proviso embraces three classes: (1) Loss, damage, or injury due to delay; ( 2) damage while being loaded or unloaded; (3) damage in transit. Clearly, misdelivery is not in the first or second class. And, unless it is in the third class, the proviso does not apply. The context shows that the phrase 'in transit' was not intended to have the broad meaning attributed to it by the [269 U.S. 158, 162] state court. In the proviso, claims on account count of damage 'while being loaded or unloaded' are separate and distinct from those for 'damage in transit.' The creation of the former class would be wholly unnecessary and inappropriate, if the latter is to be taken to include both classes. Loading precedes, and unloading follows, transit. In the ordinary and usual meaning of the word, 'transit' ends before delivery at destination. Misdelivery is not mentioned in the proviso; and the language used is inconsistent with and negatives any intention to include claims for damages on account of misdelivery in the class defined as 'damage in transit.'
Respondent contends that under section 10 of the Bill of Lading Act, c. 415 (39 Stat. 538, 540 (Comp. St. 8604ee)), it was not necessary to comply with the requirement of the bill of lading. The point is without merit. That section provides:
The rule of liability so declared is not inconsistent with the second proviso in section 20, which relates merely to the enforcement of liability. The provisions of both acts are to be read together, and applied in harmony with the bill of lading. More than nineteen months elapsed before respondent made any claims. There is nothing in the statutory provisions relied on by respondent to excuse its failure to make claim within the time specified in the shipping contract.
Judgment reversed, and cause remanded, for further proceedings not inconsistent with this opinion.