
    ELY against THE NEW HAVEN STEAMBOAT COMPANY.
    
      Supreme Court, Second District; General Term,
    
    
      Dec., 1868.
    Cause oe Action.—Delivery by Carriers.
    An action does not lie against carriers by steamboat, for loss of goods occurring after landing them upon the wharf and the lapse of a reasonable time for the consignee to send for and remove them, where, by the settled usage of business between the parties, the consignees were accustomed to send for their goods at the wharf, and no negligence on defendants’ part is shown.
    
    
      If the consignee’s place, of business was closed on the day of arrival, the carriers are excused from giving him notice of the arrival.
    It makes no difference that such day was the fourth of July.
    Appeal from a judgment.
    
      This action was Brought "by Messrs. Ely and Sanger, leather dealers in the city of New York, against the defendants as common carriers, to recover for the loss of certain leather received by them for transportation from New Haven to New York.
    
      The plaintiffs were the agents of the tanneries of Homer Ely and Colton Ely, of Ashleyville, in Massachusetts, the consignors of the property, and sued as their assignees. The leather was delivered at Springfield, Mass., to the Hartford & New Haven Railroad Company, and "by that company delivered at New Haven, on July 3, 1866, to defendants’ steamer Continental, which arrived at her pier in New York at her usual hour early in the morning of July 4. The cargo of the vessel, including this leather, was all put on the wharf "by 8 o’clock, A. m., ready to be taken away by the various consignees, and persons were in attendance during the day to make deliveries of goods. No one called for the leather, and about 2 a. m. of July 5, an accidental fire destroyed the cargo left upon the pier. The leather was marked and addressed, “H. Gr. Ely & Sanger, No. 2 Jacob-Streét, New York.” There was no bill of lading or shipping receipt given.
    The plaintiffs had been in the habit of receiving leather from these tanneries by defendants’ line, for some years, as often as once a week, and generally received from the consignees advices by mail of the shipments. The letters advising, of the shipments in question were mailed at Ashley ville, where' the consignors resided, instead of Springfield, where the goods were put on the cars,' and did not reach plaintiffs till after the fire.
    The plaintiffs kept a cartman, who was in the hahit of calling at the pier of defendants, and taking away the leather when it arrived, but he was not on duty at all on the 4th of July.
    There was some discrepancy in the evidence as to the practice of notifying the consignees, the plaintiffs claiming that the defendants had always sent notice of the arrival of goods, and that they then sent their cartman for them ; while the defendants claimed that notices were not sent to parties in New-York who were in the habit of sending for their goods, except sometimes at the request of the cartmeii and for them convenience, and these notices, when given, were given by Low & Roberts, licensed cartmen in New-York, who had an office on defendants’ pier, and who, on the arrival of the boats, received the whole freight list, assorted the cargo, and carted such of it as was addressed to parties in the city not in the habit of sending for their goods. Such as was to go to some connecting line they carted, unless it was addressed to the care of other cartmen.
    "Upon these facts the defendants moved to dismiss the complaint, on the ground that their extraordinary liability as carriers had ceased at the time of the fire, and that no negligence had been shown.
    The court so held, and the complaint was dismissed, and judgment entered for the defendants ; from which the plaintiffs appealed to the court at general term.
    
      Jesse C. Smith, for the plaintiffs.
    
      S. T. Wash, for the defendants.
    
      
       This case confines the liability of carriers by water within narrower limits than some American authorities, and tends somewhat toward assimilating the rule of liability to that which has by some courts been applied to the case of carriage by railroad.
      Judge Story lays down the rule that carriers are bound to give notice oj; the arrival of goods, to the persons to whom they are directed, and within a reasonable time. The American cases generally sustain this rule, in its application to carriage by water at least; but much question has arisen in reference to its application to railroad traffic.
      In former times, when the question of the liability of carriers arose in the case of ordinary vehicles, or vessels, they were required either to deliver at the door or place of business of the owner or consignee, or to give notice of the arrival of the vessel, where the carriage was by ship. These rules, respectively applicable, and appropriate to public convenience in those modes of conveyance, were soon found by the courts inappropriate, to a greater or less extent, in the case of carriage by railroad.
      The first point settled on the subject was that the old rule that a carrier must deliver the goods, is not applicable to railroad companies, because they have fixed tracks and fixed points of termination;. their duty is simply to transport the goods to the place of destination, and deposit them without delay in their warehouses, without the duty of making a delivery at the residence or place of business of the consignee, which by reason of their fixed track would be impracticable except by the use of wagons, which is not understood to be a part of their contract (Norway Plains Co. v. Boston & Maine R. R. Co., 1 Gray, 263; Morris & Essex R. R. Co. v. Ayres, 5 Dutch., 393).
      
        But upon the question whether the companies are bound to give notice to the consignee, the decisions of the American courts are at variance. It is obvious that the uncertainty of the arrival of the vessel was one chie reason or ground of the rule requiring carriers by water to give such notice ; and the question is whether the courts shall dispense with this requirement in view of the usual certainty of the arrival of trains and local lines of steam vessels, and of what may be shown to be the usage of business in railroad traffic. Upon this question the American cases are in conflict; and they may be divided into three classes, according to the strictness of the rule which they impose upon the company.
      The rule which requires least from the company is that laid down by the Massachusetts cases, and which has-been followed in New Hampshire and Illinois. According to this rule, carriers by railway are not bound to deliver to the consignee personally, or to give notice of the arrival of the goods, to discharge' themselves from the liability of common carriers. When the transit is ended, and the company have placed the goods in the warehouse to await delivery to the consignee, their liability as carriers is ended also, and they are responsible as warehousemen only (Thomas v. Boston & Providence R. R. Co., 10 Metc., 472; Norway Plains Co. v. Boston & Maine R. R. Co., 1 Gray, 263; Porter v. Chicago & Rock Island R. R. Co., 20 Ill., 407 ; Richards v. Michigan S. & N. Indiana R. R. Co., Id., 404; Davis v. Michigan S. & N. Indiana R. R. Co., Id., 412; Illinois Central R. R. Co. v. Alexander, Id., 23).
      This rule is the most favorable to the company. It is based upon the view that the function of the company as a carrier is simply transportation, and that it may be properly left to the owner or consignee of the goods to seek information as to the arrival of the train upon which his goods are brought, and apply for a delivery accordingly; and that if he neglects to be on hand at the time of the arrival of the train, the carriers, on depositing the goods in their warehouse, become warehousemen only.
      In the application of this rule, however, it was held by the supreme court of Illinois, that a railroad company, acting as common carriers, cannot relieve themselves of their liability, as such, by depositing the goods in warehouse, until this was evinced by some open and distinct act. If the company store the goods transported by them, in a car used for that purpose, they must show that the car has been separated from the train, and placed in the usual place for storage, in the care of another person. Goods may not be thrown down in a station-house, or on a platform, at their destination, in the name and stead of delivery. The responsibility of the carrier must last till that of some other begins, and he must show it (Chicago & Rock Island R R. Co. v. Warren, 16 Ill., 502).
      A more strict rule has been adopted in New Jersey, Vermont, Kentucky and some other States, holding the liability of the carrier to continue for an indefinite but short period after storing the goods. This rule may be stated as follows. Merely placing the goods in the warehouse does not discharge the carrier, but,he remains liable as such until the consignee has had reasonable time after their arrival to inspect and take them away, in the common course of business (Morris & Essex R. R. Co. v. Ayres, 5 Dutch., 393; Blumenthal v. Brainerd, 38 Vt., 413; Moses v. Boston & Maine R. R. Co., 32 N. H., 523 ; Wood v. Crocker, 18 Wis., 345; Jefferson R. R. Co. v. Cleveland, 2 Bush, 468).
      In the application of this rule it has recently been held by the Kentucky court of appeals that what is a reasonable time must depend on circumstances. In the caso we refer to, it appeared that the transportation was delayed by the carrier, for five days beyond the usual course, during which time the consignee, who resided in a different place, remained in the town to which they were consigned awaiting their arrival, and after he left town in consequence of their unexplained detention the goods arrived, and a notice was mailed to him. The court held that the company’s liability was not terminated by the notice (Jeffersonville R. R. Co. v. Cleveland, 2 Bush, 468).
      A third rule, more strict still, and directly deduced from the old law of carriers, has been applied in New York, Michigan and Indiana. It may be stated as follows: The liability of the carrier continues until the consignee has been notified of the receipt of the goods, and has had reasonable time, in the common course of business, to take them away after such notification (McDonald v. Western R. R. Corp., 34 N. Y., 497; Manhattan Oil Co. v. Camden & Amboy R. R. Co., 5 Abb. Pr. N. S., 289; McMillan v. Michigan Southern & Northern Indiana R. R. Co., 16 Mich., 79, 103; Michigan Central R. R. Co. v. Ward, 2 Mich., 538; The same v. Hale, 6 Mich.,243; Northrop v. Syracuse, &c. R. R. Company, 5 Abb. Pr. N. S., 425 ; New Albany & Salem R. R. Co. v. Campbell, 12 Ind., 55; Michigan, &c. R. R. Co. v. Bivens, 13 Ind., 263).
      It is probably agreed upon all hands that when goods carried by a railroad have arrived at the proper depot, and the consignee has been notified of their arrival, the carrier is under no obligation to seek out the consignee and make an offer to deliver them. It is the business of the consignee to repair to the station to receive the goods, and if the carrier refuse to deliver them on request, no valid excuse being shown, an action will, of course, lie for their non-delivery.
      In such a case, the fact that some of the goods have been damaged in their transit, can make no difference in the application of the principle (Michigan, &c. B. B. Co. v. Bivens, 13 Ind., 263).
      In considering the effect of a notice given, it is to be observed that there is a distinction between the effect of a notice to terminate the carrier’s liability, and a notice given for the purpose of enabling the carrier to charge storage. This distinction was applied by the supreme court of Illinois in the case of Richards v. Michigan Southern & Northern Indiana R. R. Co., 20 Ill., 404,—where it was held that giving notice of the arrival of goods, and requiring a consignee to remove them within twenty-four hours after their arrival, did not establish the fact or principle that the liability of the company as common carriers was to continue to the end of the time specified, but only secured their right to charge storage upon the goods after the expiration of that time, if they were not removed.
    
   By the Court.*Gilbert, J.

It is apparent that the circumstances in which the harsh and rigid rules of the common law governing the liability of common carriers had their origin have greatly changed, and that some amelioration of these rules has become necessary since the introduction of steamboats, railroads and the electric telegraph. Courts have not been unmindful of this necessity, and have gradually modified these rules in accordance with the views of public policy and individual right. The precise nature and extent of this modification, however, is still very uncertain, and it would be a fruitless task to attempt to reconcile the conflicting decisions on this subject. If it were necessary, we should be inclined to hold that, independently of the usage proved in this case, the extraordinary liability of the defendants, as common carriers, ceased when the goods were landed on the wharf and were ready for delivery ; that thenceforth they were liable only for ordinary care, and that the law does not require, from the class of carriers to which the defendants belong, a notice to consignees of the arrival of the goods carried. Such rule we think best accords with sound public policy, and with the intention of the parties in making the contract, and it is sustained by the more judicious of the recent decisions of the courts on this subject (Norway Plains Co. v. Boston, &c. R. R. Co., 1 Gray, 263; Thomas v. The same, 10 Met., 472; Lamb v. Western R. R. Co., 7 Allen, 98; Northrop v. Syracuse, &c. R. R. Co., 5 Abb. Pr. N. S., 425.

But we are of opinion that the evidence clearly establishes a course of business between the parties, in relation to the mode of delivering goods, which must govern the liability of defendants in this case. The plaintiffs had been accustomed for many years to receive goods by the defendants’ boats, as often as once a week. These boats arrived in New York each day at stated hours, morning and evening. Upon the arrival of the boat each trip, the goods were landed on the defendants’ wharf, and placed in charge of trustworthy persons employed by them to take care of and deliver the goods to the consignees and collect the freight. The plaintiffs always sent their own cartman to the wharf for their own goods soon after the arrival of the boat, and there received them from the persons so employed by the defendants. A delivery upon the wharf, therefore, in the usual way, and the lapse of a reasonable time for the plaintiffs to take away or reject the goods, terminated the extraordinary liability of the defendants as common carriers, for the reason that their contract had been performed by a carriage of the goods safely to the point of ultimate destination, and a delivery thereof at the appointed place of delivery. After these acts the defendants must be deemed to have renounced their liability as carriers, and assumed that of wharfingers, and they could be held liable only for actual negligence (Hyde v. Trent. Nav. Co., 5 T. R., 397, per Buller, J.; Gatliffe v. Bourne, 4 Bing. N. C., 314 ; S. C., 1 Scott N., 1; and 8 Id., 604; Abb. on Ship., 5 Am. ed., 463; Gibson v. Culver, 17 Wend., 305; Goold v. Chapin, 20 N. Y., 259, per Strong, J. ; Hathorn v. Ely, 28 Id., 78).

It is not contended by the plaintiffs that there was any negligence' on the part of the defendants. It is, however, urged by the learned counsel for the plaintiffs, that the defendants’ liability as common carriers continued until after the loss of the goods, because, according to the course of business referred to, a notice should have been given to the plaintiffs of the arrival of the goods.

As before intimated, where the contract in terms, or as affected by the usage of trade, is to deliver the goods at the wharf, notice is not necessary. It is not itself an act of delivery, or equivalent, or even akin to it. It is a substitute for it, arbitrarily created.

There was, perhaps, enough evidence that the duty of sending a notice to the plaintiffs’ store of the arrival of their goods formed a part of the usage in this case, to require the submission of that question to the jury, if it had been material to the determination of the case. But we are of opinion that if the fact were so, the plaintiffs’ store having been closed the whole of the day on which the goods arrived, and until after the goods had been destroyed, the defendants were excused from giving the notice. Absence of the consignee dispenses with notice (Fisk v. Newton, 1 Den., 45 ; Northrop v. Syracuse, &c. R. R. Co., supra). The defendants were under no obligation to go beyond the usage alleged, and seek the plaintiffs elsewhere than at their store.

The 4th of July was not a holiday in any sense which affects this case.

The judgment should be affirmed. 
      Present, Gilbert, J. F. Barnard, and Tappen, JJ.
     