L Shipping—Construction of Bill of Lading—delivery of Goods.

A bill of lading issued by a steamship company for goods to be transported from San Francisco to Nome contained the following clause: “It is expressly understood that the above-mentioned merchandise shall, at the option of said company, be received by the consignee thereof at the vessel’s tackle immediately after the arrival of the steamer at the port of destination, or the same may be landed and stored * * * at the expense and risk of the owner, shipper, or consignee. * * * All lighterage * * * between steamer and shore * * * will be at the risk of owner, shipper, or consignee, and also at their expense.” Held, that the purpose of such provision was to prevent delay or inconvenience to the steamer by reason of the failure of the consignee to receive the goods at the steamer’s tackle when ready for delivery, and that when he was ready and prepared to so receive them on the steamer’s-arrival at her anchorage the company was not authorized by sueh clause to lighter them at his expense and risk, and an undertaking by it to do the lighterage for a compensation agreed upon after the vessel’s arrival constituted a new and separate contract.

Si Same—Contract fob Lighterage—Loss of Goods by Carrier.

An agreement by the owner of a vessel to lighter goods which she had contracted to deliver at her anchorage for an agreed compensation, in the absence of a stipulation otherwise therein, imposed on him the obligations of a common carrier, and as such he became responsible for all goods lost or damaged between the vessel and shore, unless such loss-was occasioned by act of God or the public enemy.

3. Usage—Evidence to Establish

Usage is a matter of fact, and not of opinion, and can only be established by proof of a series of acts of a similar character performed at different times by different persons.

¶3. Presumptions as to customs and usages, see note to Elevator Co. v. White, 56 C. C. A. 394.