
    Solomon Scheu, Resp’t, v. Hiram Benedict et al., App’lts.
    
      (Court of Appeals, Second Division,
    
    
      Filed November 26, 1889.)
    
    1. Common carriers—Liability as to delivery op cargo.
    By the bill of lading consignees had five week days, regardless of weather, in which to discharge a cargo of 13,000 bushels of malt. On the first day of its arrival they took out 3,400 bushels, and on account of rain and intervening holidays did nothing more until the seventh day, when, finding that the malt had been injured by water, they refused to receive it. Held, that the consignees were entitled to a reasonable time in which to discharge the cargo, and that a finding that the consignees had not. unreasonably delayed the unloading was justified by the evidence.
    2. Same.
    If the consignee neglects to accept or to receive the goods, the carrier is-not thereby justified in abandoning them, or in negligently exposing them, to injury. He may relieve himself from responsibility by placing the goods in a warehouse for, and on account of, the consignee, but so long as he has the custody, a duty devolves upon him to take care of the property and preserve it from injury.
    Appeal from a judgment of the general term of the superior court of Buffalo, affirming a judgment entered upon a verdict at the trial term of that court.
    
      G. W. Bowen, for app’lts; James M. Humphrey, for resp’t.
   Haight, J.

This action was brought to recover damages-alleged to have been sustained by reason of a cargo of malt-becoming damp and wet The defendants were common carriers-of freight upon the Erie canal and Hudson river, and as such, owned and ran the canal boat “ W. W. Beebe.” On the 16th day day of June, 1882, they received from the plaintiff 13,000 bushels of Canada barley malt in good order, to be transported to the city of New York. Thereafter, and on the 29th day of June, the cargo arrived, and notice was given to the consignees of such arrival, who immediately, and on the same day, commenced to unload the same, taking out 2,400 bushels. At the usual hour the men stopped work, and did not appear again to continue the unloading of the cargo until the 6th day of July, being the seventh day after breaking bulk. It was then found that the malt had been injured by water, and the consignees refused to receive it.

The bill of lading provided that the consignees should have five week days, regardless of weather, in which to discharge the cargo-without liability for demurrage. In discharging the cargo the-malt had to be shoveled into bags and taken and carted away.

Upon the trial questions arose as to whether the grain was received in good order, and as to whether it was damaged upon the voyage or after it arrived in New York, all of which we must regard as settled by the verdict of the jury.

In submitting the case the court was requested by the defendant to charge that “ if the jury should find that the carriers offered to deliver the -cargo after its arrival in New York, and receiving-instructions as to its disposal, proceeded in pursuance thereof to a place designated, and commenced to discharge the cargo, then the mere liability as common carrier ceased after a reasonable time had elapsed to unload.” This request was refused, under the circumstances of the case, and an exception was taken. The court had instructed the jury that the consignees were entitled to a reasonable time in which to discharge the cargo, and that the jury were the judges as to what was a reasonable time, which must be determined under all of the circumstances of the case; that the defendants were responsible for the cargo until it was delivered in some form or another; that the mere putting of it at the disposal of the plaintiff’s agent to take out the cargo did not relieve the-defendants of their responsibility to take care of it while it lay in the harbor of New York, and was not yet taken out of the boat, and until it was removed either by the plaintiff or defendants they were liable for the proper condition of the cargo, and that if it was damaged by rain whilst lying in New York the defendants were liable. Exceptions were taken to these charges, and also to the refusal of the court to charge that “ after bulk had been broken and part of it removed, and after a reasonable time had then elapsed to unload or remove the remainder of the cargo, the liability of the carrier as such ceased.” It does not appear to us that these charges, when read and considered together, present any .ground for error which calls for a reversal of the judgment.

The rule doubtless is that the common carrier of freight by boat must, in order to relieve himself from liability, deliver the goods at the place designated in good condition. Undoubtedly there may be a constructive delivery which would terminate his responsibility as a carrier, but it must be such as would in law be recognized as a delivery. If the consignee neglect to accept or to receive the goods the carrier is not thereby justified in abandoning them or in negligently exposing them to injury. If they are not accepted and received when notice is given of their arrival, he may relieve himself from responsibility by placing the goods in a warehouse for and on account of the consignee, but so long as he has the custody a duty devolves upon him to take care of the property and preserve it from injury. Tarbell v. The Royal Exchange Shipping Co., 110 N. Y., 170-182 ; 17 N. Y. State Rep., 153 ; Hathorn v. Ely., 28 N. Y., 78; Fisk v. Newton, 1 Denio, 45 ; Price v. Powell, 3 Comstock, 322; Fenner v. The Buffalo & State Line Railroad Co., 44 N. Y., 505.

As to whether or not the consignees proceeded with reasonable diligence to unload the cargo was, as the trial court stated, a question under the circumstances of the case for the jury. In order to remove the malt from the boat it had to be bagged and carted away. Whether this could be done with safety in a rainy day was a question of fact. It appears that Sunday and one holiday had intervened and that one or two days had been rainy, so that we think a finding that the consignees had not unreasonably delayed the unloading of the boat is justified by the evidence. On the 6th day of July, as we have seen, the cargo was found so damp as to cause it to be rejected by the inspector of the parties. The consignees had the right to have the malt inspected as it was taken from the boat before accepting it. The entire cargo could not well be inspected at the same time, for that which was on top may have been dry and in good order, whilst that in the bottom of the boat might have been wet and spoiled. The inspector stood by and examined it as it was taken from the boat, and it was only , such as passed his inspection that was accepted by the consignees. That which remained in the boat at the close of work on the 29th day of June remained in the custody and possession of the defendants whose duty it was to exercise ordinary care to preserve and protect it from injury and to allow the consignees a reasonable time within which to inspect it and take it away, and in case they neglected to receive or take it within such time, then it was the duty of the defendants to discharge it in store or warehouse where it would still be protected from the elements.

It consequently appears to us that the defendants have no ground of complaint as to the charges made and that the judgment should be affirmed, with costs.

All concur. _  