
    Charles W. Tarbell, App’lt, v. The Royal Exchange Shipping Co. (Limited), Resp’t.
    
      (Court of Appeals,
    
    
      Filed June 29, 1888.)
    
    1. Common carrier by water—Duty and obligation does not cease WITH UNLOADING OF GOODS ON WHARF.
    Generally the duty and obligation of a common carrier by water does not ipso facto cease on the unloading of goods fiom the ship and their deposit upon a wharf, especially where the place of discharge is also the terminus of the particular voyage.
    2. Same—Duty to deliver goods to consignee—Delivery may be constructive.
    The obligation of the shipowner is not only to carry the goods to the port of destination, but to deliver them to the consignee. But a delivery which will discharge the carrier may be constructive and not actual.
    3. Same—What will constitute constructive delivery—When liability OF CARRIER CEASES.
    To constitute a constructive delivery the carrier must, if practicable, give notice to the consignee of the arrival. When this has been done and the goods are discharged in the usual and proper place, and reasonable opportunity afforded to the consignee to remove them, the liability of the carrier as such termina'es.
    
      4. Same—Duty of consignee to receive and take the goods.
    The duty of the consignee to leceive and take the goods is as imperative as the duty of the carrier to deliver. Both obligations are to be reasonably construed having reference to the circumstances.
    5. Same—Carrier by warehousing goods not accepted by consignee, ESCAPES LIABILITY FOR LOSS THEREOF.
    Although a consignee may neglect to accept or receive the goods, the carrier is not thereby justified in abandoning them or in negligently exposing them to injury. The law in such a contingency gives him the right to warehouse the goods. When this is done he is no longer liable in any respect, and if they are subsequently lost by the negligence of the warehouseman the carrier is not liable.
    6. Same—Liability cannot be continued at the option of consignee.
    The stringent liability of the carrier cannot be continued at the option, or to suit the convenience of the consignee. The consignee is bound to act promptly in taking the goods, and if he fails to do so, the carrier’s liability as insurer is by such failure terminated.
    7. Same—When delivery of goods such as to discharge carrier from LIABILITY. '
    In the present case prompt notice of the arrival of the tin was given by the defendant to the consignees. They were discharged from the ship on Monday and deposi ed on the proper wharf. The consignees had three full days thereafter in which they could have removed the tin before the day when the loss of part of it was discovered. The consignees were not prevented from removing said tin from the wharf during those days by any act of the defendants or by any vis major and their removal during that time was practicable in the exercise of due diligence by the consignees. Held, that the defendants made delivery of the tin under their contract as carriers, and discharged themselves from its custody as such. That the loss occurred after notice to the consignees of the arrival and the lapse of a reasonable time for the removal of the tin from the wharf.
    8. Same—Bill of lading—Effect of clause in bill of lading as to WHAT SHOULD TERMINATE LIABILITY OF CARRIER, ETC.
    The general duty of a carrier to deliver and of a consignee to receive, is not essentially changed by a clause in the bill of lading that the goods are to be delivered “ from the ship’s deck when the shipowner’s responsibility shall cease” or by a clause that “the goods are to be received by the consignee immediately the vessel is ready to discharge.”
    9. Same—When liable as bailee or warehouseman.
    So long as the carrier has the custody of the goods, although there has been a constructive delivery which exempts him from liability as carrier, there supervenes upon the original contract of carriage by implication of law, a duty as bailee or warehouseman to take ordinary care of the property.
    10. Same—When responsible as warehouseman for negligence of SERVANTS.
    The tin was deposited on defendants’ private wharf, to which alone they, théir servants, and those permitted by them had access. The tin could not have been removed against their consent. The part in question was in fact removed by some one, unknown, through the negligence of defendants’ servants. The tin was placed by the act of defendants under the dominion of the consignees for the purpose of weighing and removal. But as between the defendants and the consignees and their assignees, the actual custody of the part not removed by the consignees or their assignees remained at all times in the defendant. Held, that the defendants were guilty- of negligence under the doctrine of respondeat superior. That they were liable for the value of the tin lost.
    
      11. Same—Effect of delay of consignee to remove goods.
    The delay of the consignees in removing the tin had no legal connection with this breach of duty by the defendants and cannot be considered as a concurring cause of loss.
    12. Same—Bill of lading—Construction of.
    The exceptions in the bill of lading of loss by thieves, etc., did not exempt the defendants because, first, the tin was not lost by theft; second, by the true construction of the contract, the perils excepted were those which should happen before or during the voyage and while the goods were in possession of the carriers as such under the bill of lading.
    13 Practice—Objection that defense made was not within issues— When too late.
    This case was tried upon both theories of liability and no objection was made that a cause of action for negligence in not properly caring for the tin after the strict liability of the defendants • as carriers had ceased, was not within the issues. Held, it was too late to take this objection on appeal.
    Appeal from a judgment of the general term of the superior court of New York city, reversing a judgment entered in favor of the plaintiff upon the decision and finding of a judge at special term.
    This action was brought to recover damages for the nondelivery in New York of sixty-three slabs of ftin, part of a shipment of 1702 slabs, made at Singapore, India, September 7, 1882, under a bill of lading stipulating that the tin should be transported from Singapore to London per the steamer “ Thibet,” and thence by a steamer of the Monarch line to New York. The “York City,” having the consignment of tin on board, arrived at her wharf in Jersey City on - Saturday, September 25,1882. On the same day notice was given by the agents of the defendants to Mayer Bros. & Co., the assignees of the bill of lading, of the arrival of the vessel, and on that day Mayer Bros. & Co. entered the tin at the custom house, and, there being no duty on tin, obtained a free permit for its discharge. On Monday, the 27th, the consignees paid the freight to the ship’s agents, who thereupon gave to Mayer Bros. Sc Co. a delivery order addressed to the delivery clerk of the Monarch line, at Pavonia Ferry, Jersey City, for the delivery of the tin. Mayer Bros. Sc Co. presented to and left with the delivery clerk, on the same day, the custom house permit and the delivery order, with an endorsement on the latter, “ deliver to our order only.” Before the arrival of the vessel Mayer Bros. & Co. had sold to one Peter Hayden generally twenty-five tons of tin to arrive, and he had made a similar sale to Lucius Hart Sc Co.
    On the afternoon of September 27, Mayer Bros. Sc Co. sent a weigher to the defendant’s wharf to weigh the tin, instructing him to separate it into lots of five tons each, and to mark the lots consecutively 1, 2, 3, 4, 5, etc. The weigher on reaching the wharf found that the tin had not been discharged from the vessel, but was told by the delivery clerk that it would be discharged right off. He did not wait, but returned to the wharf on the morning of Friday, the 28th, about eight o’clock, and then found about thirty tons discharged and lying on the wharf.
    He weighed and divided it into five ton lots, numbered it as instructed, and completed the weighing about eleven o’clock, and about noon of that day sent returns of the weights to Mayer Bros. & Co. About one o’clock of the same day, Mayer Bros. & Co., in fulfillment of the contract of sale to Peter Hayden, sent to him an order in writing' on the delivery clerk of the vessel, for the delivery to him of lots 1, 2, 3, 4, 5, of the tin, and with the order sent the weigh-er’s return of the said five lots. Peter Hayden at once endorsed the order to Lucius Hart & Co., his vendees, and between one and three o’clock, delivered it with the weigh-er’s return to that firm. Lucius Hart & Co., made no effort • to take the tin that day. On the morning of September twenty-ninth, they sent two tracks, one double and one single horse truck, to the wharf to take tin. The drivers were accompanied by one James Coughran, an employe of Lucius Hart & Co., who handed to and left with the delivery clerk the order for lots 1, 2, 3, 4, 5. The two horse truck, before noon, drew two loads of the tin to the store of Lucius Hart & Co., in New York, in all about four tons, and the one horse truck one load, consisting of about one ton, and no more was drawn on that day. The next day, the thirtieth, was Thanksgiving day. Lucius Hart & Co. aid not send to the wharf at all on that day, though the wharf was open for business, and other merchants sent for and took away goods on that day. On the morning of December first, it was found that the piles of tin included in the order to Lucius Hart & Co. had been disturbed, and that sixty-three slabs of tin were missing, but when the sixty-three slabs were taken away, or by whom, or under what circumstances, is not disclosed. The trial judge found explicitly that they were not stolen, although there is an apparent inconsistency between this finding and an expression in a finding proposed by the defendants, adopted by the judge, in which after stating that on the morning of December first, investigation, showed that sixty-three slabs were missing, the finding concludes: “ no clue to the stolen tin was ever obtained.”
    The trial court found on the request of the defendants, as follows: “The part of the wharf where the tin lay, was the private wharf of the defendants. It was covered with a. substantial building, the doors of which were locked at night. Two watchmen were employed by the defendants to-watch the wharf by day and four by night; and due care had been taken in their selection. There was also a competent person in the employ of the persons to keep a tally of the cargo taken away by merchants, and to take receipts, for it.
    It was shown that the delivery of cargo landed on defendants’ wharf, to consignees, was under the direction and supervision of the delivery clerk and his subordinates. But the delivery clerk had been instructed by the defendants not to deliver goods to cartmen without taking a receipt, and it was his duty to take receipts for goods before he permitted them to be taken from the wharf. The practice was for the gateman to count the load, and take the cartman’s receipt in a book provided for that purpose, after the goods were loaded, and before the cartman left the pier, Madigan, the delivery clerk, testified that, when he knew the cartmen, he sometimes permitted them to take goods without receipting for them. There were no receipts taken for the sixty-three slabs in question. The three loads taken on the twenty-ninth were receipted for according to the rule, as were also -the loads subsequently taken by Lucius Hart & Co., constituting the remainder of the twenty-five tons purchased by them less the sixty-three slabs, the receipts being in form: “ Received in good order from on board the steamship York City, the following packages for Mayer Bros. & Co.,” with a statement of the number of slabs, the date, the number of the cart, and signed by the cartman. After the discovery of the loss of the sixty-three slabs, the defendants, by their agents, made diligent inquiry to ascertain what had become of them, but were wholly unable to trace them. Each slab weighed more than 100 pounds.
    The trial judge found that the defendants were negligent in not warehousing the tin, and also that the delivery clerk was negligent' in permitting goods to be removed from the dock without taking receipts from the cartman in every instance, and that his negligence was the negligence of the defendants. Due demand for the tin was made of the defendants before suit was brought.
    The trial judge directed judgment for the plaintiff for the value of the missing tin on two grounds: first, that it was liable as carrier, and, second, if this relation had terminated, it was liable as a warehouseman for negligence. The general term reversed the judgment on the ground that the defendants’ responsibility as carrier had terminated by a delivery of the tin to Mayer Bros. & Co. before the loss in question, taking no notice of the other grounds of liability, on which the judgment also proceeded.
    Other facts are referred to in the opinion.
    
      Charles Blandly, for app’lt; William, Allen Butler, for res’pt.
   Andrews, J.

The bill of lading contained special clauses defining the obligation of the carrier in respect to the delivery of the goods, and also the duty of the consignees as to receiving them. By the first of the clauses referred to the goods were “to be delivered from the ship’s deck (where the ship owner’s responsibility shall cease) at the port of New York,” and by the second it was declared that the goods were “to be received by the consignees immediately the vessel is ready to discharge, or otherwise they will be landed and stored at the sole expense and risk of the consignee, in the warehouses provided for that purpose or in the public store, as the collector of the port of New York shall direct.”

Among the exceptions in the bill of lading is one against loss by “pirates, robbers, thieves, etc., whether such perils or things arise from the negligence, default or error in judgment of the pilot, master, mariners, engineers, stevedores, agents or other persons in the service of the ship owner, and occur before, during the voyage, or at the port of discharge.

It is conceded that the sixty-three slabs of tin, the value of which the plaintiff seeks to recover in his action, have been lost and have never come to the actual possession of Mayer Bros. & Co., or their assignees. The necessary conclusion from the evidence is that they were removed from the wharf of the defendant after they had been discharged from the ship, by some one without authority of the true owner. The finding that they were not taken by theft leads to the alternative conclusion that they were taken by some person other than the true owner by mistake, but with the passive acquiescence at least of the persons in charge of the wharf. If the original taking was not felonious, it is difficult to resist the conclusion that there was a subsequent felonious appropriation, in view of the fact that the property has never been returned and that all efforts to trace it have proved unavailing. But whether, taken by felony or mistake there cán be no reasonable doubt that the tin in question passed from the wharf of the defendants through the usual gate through which goods were taken, and under the observation of the persons in charge. The weight of each slab exceeded one hundred pounds.

The ship lay against the wharf. The wharf was enclosed on all sides. On the water side there was a gate for the discharge of cargo on to the pier. There were two other gates, one for the entrance of trucks and one through which the loaded trucks passed on leaving the wharf. It is a reasonable inference that whether the tin was taken by felony or mistake, the loss would have been prevented if the defendants’ agents in charge of the wharf had required from the person taking the tin an exhibition of his authority, and had followed the rule prescribed by the defendants, requiring the gatemen to inspect goods passing the gate and to take receipts from cartmen before permitting goods to leave the wharf. It is not claimed that any authority was exhibited to the defendants’ agents other than the original order of Mayer Brothers & Co., indorsed to Lucius Hart & Co, on the 28th, to deliver the twenty-five tons of tin embraced in the order, nor that any receipt was taken by the gateman for the sixty-three missing slabs.

The trial judge found, in substance, that the defendants never delivered the tin pursuant to their contract of carriage ; but held it at the time of the loss, in their capacity of carriers, subject to the rigorous liability imposed upon carriers by the common law, except as modified by the bill of lading, and that the tin was not lost by any of the perils excepted in the bill of lading. But the trial judge placed the right of the plaintiff to recover on an additional ground, viz., actual negligence on the part of the defendants’ agents and servants in the care of the goods while on the wharf, by reason of which they were lost; and held that, assuming they were not liable as carriers under the contract of affreightment, they were liable for a breach of duty to use ordinary care in the protection and preservation of the goods.

We concur in the conclusion of the general term that the judgment of the trial court cannot be supported on the liability of the defendants as carriers under the bill of lading. The general principle that the duty and obligation of a common carrier by water does not ipso facto cease on the unloading of goods from the ship and their deposit upon a wharf, and especially where the place of discharge is also the terminus of the particular voyage, is the settled doctrine of this court and the generally accepted doctrine of the maritime law. The obligation of the shipowner is not only to carry the goods to the port of destination, but to deliver them there to the consignee.

But a delivery which will discharge the carrier may be constructive and not actual. To constitute a constructive delivery, the carrier must, if practicable, give notice to the consignee of the arrival, and when this has been done and the goods are discharged in the usual and proper place, and reasonable opportunity afforded to the consignee to remove them, the liability of the carrier, as such, terminates. The duty of the consignee to receive and take the goods is as imperative as the duty of the carrier to deliver. Both obligations are to be reasonably construed, having reference to the circumstances. The stringent liability of the carrier cannot be continued at the option, or to suit the convenience of the consignee. The consignee is bound to act promptly in taking the goods, and if he fails to do so, whatever other duty may rest upon the carrier in respect to the goods, his liability as insurer is by such failure terminated. Redmond v. Liverpool Co., 46 N. Y., 578; Hedges v. Hudson River R. R. Co., 49 Id., 223.

In the present case prompt notice of the arrival of the goods was given by the defendant to Mayer Bros. & Co. They were discharged from the ship on Monday, November 27th, and deposited on the proper wharf. The consignees had three full days thereafter in which they could have removed the tin, before the first day of December, the day when the loss was discovered. They were not prevented from removing it from the wharf during those days by any act of the defendants, or by any vis major and it is very clear that its removal during that time was practicable in the exercise of due diligence by the consignees. See Richardson v. Goddard, 23 How. U. S., 28.

Under these circumstances, the defendants, under the authorities, must be held to have made delivery of the tin under their contract as carrier, and to have discharged themselves from its custody as such; and as the loss, upon the evidence and findings, must be held to have occurred after notice to the consignees of arrival, and the lapse of a reasonable time for the removal of the tin from the wharf,the general term properly overruled the first ground of liability asserted by the plaintiff.

_ The general duty of a carrier to deliver, and of a consignee to receive, as defined in the authorities to which we have referred, is not, we think, essentially changed by the clause in the bill of lading that the goods are to be delivered “from the ship’s deck, when the shipowners’ responsibility shall cease,” or by the clause that the goods are to be received by the consignee “immediately the vessel is ready to discharge.” See Collins v. Burns, 63 N. Y., 1; Gleadell v. Thomson, 56 id., 194.

The defendants, in our view, are not liable as carriers for the reason that they had made delivery as such according to the general rule governing the liability of carriers by water. But this conclusion does not meet the other ground of liability asserted and found by the trial court, viz: that the defendants neglected to exercise due and proper care of the tin, and negligently permitted it to be taken from their wharf by strangers, which is the substance of the findings on this branch of the case. It is claimed by the learned counsel for the respondents that this cause of action was not alleged in the complaint, and that the action was brought exclusively upon the contract of affreightment, and the duty of the defendants to make delivery under the bill of lading. The case was tried upon both theories of liability, and no objection was made that a cause of action for negligence in not properly caring for the tin after the strict liability of the defendants as carriers had ceased, was not within the issues. It is now too late to take this objection. See Wellington v. Morey, 90 N. Y., 656; Vann v. Rouse, 94 id., 407.

There can be no doubt, we suppose, that in many cases a carrier’s whole duty in respect to goods carried by him is not discharged by a constructive delivery terminating his strict responsibility as carrier. Although a consignee may neglect to accept or receive the goods, the carrier is not thereby justified in abandoning them, or in negligently exposing them to injury. The law enables him to wholly exempt himself from responsibility in such a contingency by giving him the right to warehouse the goods. When this is done, he is no longer liable in any respect, and if they are subsequently lost by the negligence of the warehouseman, the carrier is not liable. Redmond v. Liverpool Co., 46 N. Y., 578, and cases cited.

But so long as he has the custody of the goods, although there has been a constructive delivery which exempts him from liability as carrier, there supervenes upon the original contract of carriage by implication of law, a duty as bailee or warehouseman to take ordinary care of the property. This duty of ordinary care rested upon the defendants in this case. The tin, it is true, was placed by the act of the defendants under the dominion of the consignees for the purpose of weighing and removal, but nevertheless as between the defendants and the consignees and their assignees, the actual custody of the part not removed by the consignees or their assignees, remained at all times in the defendants. It was deposited on their private wharf, to which alone they, their servants, and those permitted by them had access. The tin could not have been removed against their consent. It was in fact removed by some one unknown, by their tacit acquiescence, doubtless without any fraud on their part, but nevertheless its removal by a stranger was made possible by reason of an omission on the part of the defendants’ servants to take the precautions against misdelivery which the defendants had deemed it proper to prescribe to prevent such an occurrence. The trial court found that the omission to take these precautions was negligence. We do not perceive why this finding is not supported by evidence. If there was negligence on the part of the servants of the defendants which occasioned or contributed to the loss, the doctrine of respondent superior applies and makes it in law the negligence of the defendants.

The delay of the consignees in removing the tin had no legal connection with this breach of duty by the defendants, and cannot justly be considered as a concurring cause of the loss. The exceptions in the bill of lading of loss by thieves, etc., do not exempt the defendants from liability, for the reasons, first, that it was found by the trial court-that the tin was not lost by theft, and second, by the true construction of the contract the perils excepted were those which should happen before or during the voyage and while the goods were in the possession of the carriers as-such under the bill of lading.

Upon the whole case, we are of opinion that the original judgment is supported upon the ground of actual negligence of the defendants after the contract of carriage had been performed, in omitting to exercise ordinary care in the-custody of the tin. It was found by the trial judge, upon the request of the counsel for the defendants, that the-plaintiff owned by assignment the claim in suit, and no-question can now be made as to the right of the plaintiff to maintain the action.

For the reasons stated, we think the general term erred in reversing the judgment, and the order of reversal should therefore be reversed and the judgment of the trial court-affirmed.

All concur, except Earl and Gray. JJ., not voting.  