4. Carriers 193-Last carrier may recover all freight charges advanced by it. In case of shipment under bill of lading providing owner or consignee should pay freight and all other lawful charges before delivery, if required, where car was diverted to parties other than original consignees, who ordered a further diversion, such parties obligated themselves to pay all freight charges on shipment; road to which car was last diverted becoming accountable to prior carriers for collection and payment of such charges against parties to whom shipment was diverted, and who ordered further diversion to its line. 5. Carriers 193-Last carrier entitled to recover charges of connecting carrier against whom owner has counterclaim for loss. Where shipment was diverted from original consignee to parties who ordered further diversion, railroad then having shipment agreeing to deliver car in time for certain train on terminal road, but car was not so delivered in time, and parties to whom shipment had been diverted suffered damage thereby, terminal road, suing them for its and all prior charges, could collect those accruing to railroad which had been in default in failing to deliver car to terminal road in time for its train; such recovery not precluding parties from suing road in default directly to recover their damages. Appeal from City Court of Buffalo, Trial Term. Action by the Grand Trunk Railway Company of Canada against Barnett Satuloff and Nathan Satuloff. From a judgment for defendants on their counterclaim, plaintiff appeals. Reversed and rendered. Moot, Sprague, Brownell & Marcy, of Buffalo (Herbert P. Miller, of New York City, of counsel), for appellant. Aaron Fybush, of Buffalo, for respondents. WHEELER, J. This appeal is from a judgment of the City Court of Buffalo in favor of the defendants and against the plaintiff upon a counterclaim alleged and set up in their answer. The facts are practically undisputed, and the return shows that a carload of 400 crates of strawberries was delivered by one E. F. McGarvey, at Dayton, Tenn., to the Cincinnati, New Orleans & Texas Pacific Railway, consigned to said McGarvey at Cincinnati, Ohio. The usual bill of lading was issued. This car was thereafter diverted while en route to Toronto, Canada. While en route to Toronto, the shipment was again diverted to the defendants at the city of Buffalo, N. Y. When the car arrived in Buffalo the defendants claim they had a conversation with the agent of the New York Central Railroad, in whose custody the car then was, to the effect that the defendants would buy the strawberries from McGarvey, if the New York Central would undertake to transfer the car to the Grand Trunk Railway, the defendant herein, by 10 o'clock of that evening, so the car could be attached to train 427 of the Grand Trunk Railway, and reach Toronto in time for the market the following morning. The defendants allege that the agent of the New York Central Railroad agreed to make such transfer, and the defendants thereupon became the owners of the car and ordered it forwarded to McWilliams & Ernest at Toronto. The defendants handed over to the New York For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) Central the necessary customs papers for entry into Canada at about 5:30 p.m. The car, however, was not transferred to the Grand Trunk in time to connect with train 427, although that train waited an hour longer than its usual departing time at 10:30 p. m. The train left without the car containing the strawberries attached. The car was forwarded. The defendants, however, ordered it back to Buffalo while en route, because of the receipt by them of a telegram from the Toronto consignees, stating the car had not arrived in time for the morning market, and they would not, therefore, accept it. The car was thereupon returned to Buffalo, and the berries sold on the open market at Buffalo, by reason of which the defendant suffered a loss. The plaintiff paid the charges of the connecting carriers, which were in accordance with the duly filed and published tariff rates, and in this action in the City Court sought to recover the same. These charges were as follows: Grand Trunk Railway freight charges.. Cincinnati, New Orleans & Texas Pacific Railway freight charges.... .$ 52.30 51.12 74.00 59.00 2.00 $238.42 The defendant set up a counterclaim for its alleged loss, due to the failure of the New York Central Railroad Company to keep its agreement to transfer the car to the Grand Trunk in time to connect with train 427. The trial judge in the City Court dismissed the plaintiff's complaint, and gave judgment to the defendants for the full amount of their counterclaim, to wit, $128.75, with interest. From this judgment the plaintiff appeals to this court. [1] We are at a loss to understand upon what theory the Grand Trunk Railway Company can be held liable for any default of the New York Central Railroad Company in the delivery of the car to the Grand Trunk in time to be attached to train 427 as alleged in the defendants' answer. The bill of lading issued by the original receiving company at Dayton, Tenn., expressly provided that "No carrier shall be liable for loss, damage or injury not occurring over its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such liability is or may be imposed by law." This agreement governed the transportation of the car after its receipt by the Grand Trunk, and unless there is some positive law making the Grand Trunk liable for the default of the New York Central, the counterclaim asserted is not a valid one against the Grand Trunk. There is no allegation and no proof that the Grand Trunk failed in its duty in any respect. The allegation is that, by virtue of an agreement with the New York Central, that company undertook to make delivery to the Grand Trunk in time to connect with a certain train of that road, and failed in that respect, by reason whereof the defendants suffered certain damage. It will be noted that the defendants' claim for damages is based. therefore, not on the bill of lading issued at the time of shipment, or by reason of any failure on the part of any of the carriers over whose lines the car was transported by reason of any neglect of duty imposed by such bill of lading, but rather by reason of the New York Central Railroad failing to carry out a separate and distinct agreement made by the defendants with that company to do a certain and particular thing. The connecting lines (independent of the New York Central) were only bound by the terms of the bill of lading, not by any outside and independent agreement with the Central Company. So far as the proof in this case is concerned, there is no evidence that the Central Railroad Company failed to perform any of the obligations imposed by the bill of lading, or their duties as a common carrier. In other words, if that company had not made the special agreement alleged to deliver the car in time to be attached to train 427, in delivering it at the time it did a few hours later, it would have fully performed all its obligations as a carrier under the bill of lading issued. For all that appears the Central Railroad may have acted with the utmost diligence, and been entirely free from negligence in the forwarding of the car, although it failed to carry out the special agreement made with the defendants. The defendants' cause of action, therefore, if any exists, grows out of, and must depend on, this special arrangement with the Central Railroad, and not out of any obligation growing out of the original shipment incident thereto, for the Grand Trunk Railway Company was not in any way connected with, or a party to, any such special independent agreement made with the Central Road, and, so far as the record is concerned, had no knowledge of such an arrangement. So far as the record in this case is concerned there appears to have been no new or further consideration for the undertaking of the New York Central Company, and it is very doubtful that any recovery whatever could be had against the Central on such a promise. These considerations alone, we think, are fatal to the right of the defendants to assert and recover on their counterclaim against the Grand Trunk Railway Company. Over and above these considerations, we think claim cannot be asserted as a basis of recovery against the Grand Trunk. As already stated, one of the conditions of the bill of lading was that— "No carrier shall be liable for loss, damage, or injury not occurring over its own road, * except as such liability is or may be imposed by law." Is there any such liability imposed by law on the Grand Trunk Railway Company for loss suffered by the neglect of the New York Central Railroad Company? We think not. Reference has been made to the so-called Carmack Amendment to the Interstate Commerce Act (U. S. Comp. St. §§ 8604a, 8604aa). This act provides: "That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or a bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose line or lines such prop (182 N.Y.S.) erty may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprite any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law." [2] This act simply provides in substance that, whenever a shipper or owner suffers loss or damage to a shipment over a number of successive lines, he may either sue the initial carrier, which under the act becomes responsible, not only for the damage done on its own line, but as well on the lines of connecting carriers, or the shipper or owner may, if he elects, sue the carrier on whose line the damage occurred. There is nothing in this act, however, which makes a connecting carrier liable for losses sustained on other lines before the shipment reaches its own. Consequently the Grand Trunk cannot be made liable in this case for losses occasioned by the negligence or omission of the New York Central Company. Neither is there anything in the common law, independent of the statute, which holds a connecting carrier to such a liability. [3] The common-law rule is stated in 6 Cyc. 496, where it is said: "The right of the consignee or owner to offset damages against freight cannot be asserted against the last carrier with reference to damages on the line of the preceding carrier, either as to the last carrier's charges or the charges which he had advanced to the preceding carrier. The remedy being against the carrier in whose hands the damage occurred." This is the law as laid down and recognized in the cases of Merrick v. Gordon, 20 N. Y. 93; New York Central & H. R. R. R. Co. v. Weil, 65 Misc. Rep. 179, 119 N. Y. Supp. 676; Sumner v. Walker (D. C.) 30 Fed. 261; Johnson-Brown Co. v. D. L. & W. R. R. Co. (D. C.) 239 Fed. 590. If, however, the common law supported another or different doctrine, it would be superseded by the provisions. of the Carmack Amendment above quoted. See opinion of Mr. Justice Lurton in Adams Express Co. v. Croninger, 226 U. S. 505, 33 Sup. Ct. 152, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257. Justice Lurton, after referring to the difficulties embarrassing shippers before the passage of the Carmack Amendment, then said: "The congressional action has made an end to this diversity; for the national law is paramount, and supersedes all state laws as to the rights and liabilities and exemptions created by such transaction." Continuing, Justice Lurton further said: "That the legislation supersedes all the regulations and policies of a particular state upon the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation, or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject and supersede all state regulation with reference to it." The learned Justice continues: "To construe this proviso as preserving to the holder of any such bill of lading any right or remedy which he may have had under existing federal law, at the time of his action, gives to it a more rational interpretation than one which would preserve rights and remedies under existing state laws, for the latter view would cause the proviso to destroy the act itself. One illustration would be a right to a remedy against a succeeding carrier, in preference to proceeding against the primary carrier, for a loss or damage incurred upon the line of the former." See, also, Johnson-Brown Co. v. D., L. & W. R. R. Co. (D. C.) 239 Fed. 590. We therefore conclude that the defendants' counterclaim was improperly allowed by the City Court. [4] Is the plaintiff, however, entitled to recover for the amount sued for in this action, which includes, not only its own freight charges for the car in question, but also the amount of the charges for transportation of the Cincinnati, New Orleans & Texas Pacific Railroad Company and of the New York Central Railroad Company, the items of which have been previously stated in this opinion. The bill of lading provides that— "The owner or consignee shall pay the freight and all other lawful charges accruing on said property, and if required shall pay the same before delivery." This constituted the contract between the shipper or owner with the railroad companies. The defendants became the owners_of the strawberries shipped, and, ordering a diversion of the car to Toronto over the Grand Trunk line, obligated themselves to pay all these freight charges. Of course, the Grand Trunk in turn became accountable to the prior carriers for the collection and payment to them of their charges for transportation. So we think the Grand Trunk Railway Company had in this case a clear cause of action for these charges against the defendants. [5] The only fairly debatable question upon the facts presented is whether the right of recovery extended to the charges of the New York Central for $51.12, in view of the fact that the defendants claim, by reason of the Central's failure to deliver the car in time to catch the 427 train, they suffered damage in excess of any amount due for freight. If the New York Central Railroad Company were suing to recover this $51.12 for freight, then under the authority of Pennsylvania Railroad Co. v. Bellinger, 101 Misc. Rep. 105, 166 N. Y. Supp. 652, the defendants might counterclaim their damages, owing to the alleged failure of the road to deliver the car in time for train 427. The Central is not suing, but the Grand Trunk is, and for moneys it became the Grand Trunk's duty to collect, and which the defendants agreed to pay on the delivery of the car, and which sum the plaintiff alleges it has paid to the Central Railway Company. We think that, under the circumstances, the plaintiff is entitled to recover all freight charges, that of the New York Central included. Such a holding seems to be in conformity with the decisions. N. Y. Central & H. R. R. Co. v. Weil, 65 Misc. Rep. 179, 119 N. Y. Supp. 676; Merrick v. Gordon, 20 N. Y. 93; Travis v. Thompson, 37 Barb. 236. Such a recovery does not preclude the defendants from bringing an action directly against the Central to recover such damages as they can show they have legally sustained by reason of its failure to |