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Action on contract. Fulton Civil Court. Before Judge Wright.
HALL, Judge.
A petition of a common carrier against a shipper, alleging a contract of carriage incorporating a tariff regulation providing that outer shipping containers must be made of materials of such strength as to protect against damage to other goods, and that the carrier sustained a loss on account of claims for damages to goods of other shippers caused by a latent defect in the defendant's shipping container, states a cause of action.
The plaintiff (plaintiff in error in this court) assigns error on the judgment of the trial court sustaining the motion to dismiss the plaintiff's petition on the ground that it failed to set out a cause of action. The following facts were shown by the petition: The defendant shipper delivered to the plaintiff, a common carrier, a drum containing liquid cleaning compound. A latent defect in the container caused it to crack and the contents to leak and damage the carrier's other cargo. The carrier had to pay claims for damages to other shippers and sought to recover from the defendant shipper the sum of the claims paid. The contract of carriage was by a shipping order and bill of lading which expressly provided that it was "subject to the classifications and tariffs in effect on the date of the issue" of these documents. At the time there was in force a tariff regulation (Section 8, Rule 5 of the National Motor Freight Classification number A-5) which provided: "Outer Shipping Containers must be made of materials of such strength as to afford safe handling, reasonable and proper protection of contents and to protect against damage to other goods."
By law as well as by express agreement, the regulation quoted above became a part of the contract between the parties from which the rights and obligations between them must be determined. Ga., Fla. & Ala. R. Co. v. Blish Milling Co., 241 U. S. 190, 197 (36 SC 541, 60 LE 948); Davis v. Henderson, 266 U. S. 92 (45 SC 24, 69 LE 182); Eastern Motor Express, Inc. v. A. Maschmeijer, Jr., Inc., 247 F2d 826, 828. The State common law of bailment is not applicable, therefore, as contended by the defendant. See Howkins v. Atlanta Baggage &c. Co., 107 Ga. App. 38, 43 (129 SE2d 158).
By this contract the defendant undertook to ship in a container made of materials of such strength as to protect against damage to other goods. The petition alleges that the container was defective in that it was not of such strength, and that the defect was latent. This fact would make the shipper liable for breach of an obligation under the contract. This is true even if we construe the allegations of the petition, as the defendant contends we should, to mean that the defendant did not itself fill or seal the drum and had no knowledge of its condition or contents.
Our interpretation of the tariff regulation incorporated in the contract as placing upon the shipper the obligation of shipping in protective containers is consistent with the law requiring common carriers generally to accept all goods offered them for transportation which they are able and accustomed to carry, with the right to reject only containers that are patently unfit for shipment. Beck & Gregg Hdw. Co. v. Associated Transport, Inc., 210 Ga. 545 (81 SE2d 515); Eastern Motor Express v. A. Maschmeijer, Jr., Inc., 247 F2d 826, 828; 13 CJS 61, 63, Carriers, 27, 28; 13 Am. Jur. 2d 749, 756, Carriers, 235, 247.
The petition shows no facts that support the plaintiff's prayers for attorney's fees based on stubborn litigiousness of the defendant. Murphy v. Morse, 96 Ga. App. 513, 516 (100 SE2d 623).
Nall, Miller, Cadenhead & Dennis, Thomas A. Rice, for plaintiff in error.
Friday May 22 21:52 EDT

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