
    Miller against Steam Navigation Company.
    A common carrier on the Hudson river of goods consigned to an agent at Albany for transportation to their ultimate destination upon the Erie canal, was engaged in transferring them from his barge to a stationary floating craft owned and used by himself for convenience in transhipping freight to canal boats and as a place of temporary deposit until the canal boats should haul alongside and receive them. After the deposit of a portion of the goods upon such float, and before the expiration of a reasonable time for the consignee to remove them, they were destroyed by fire: Held, that irrespective of the question whether the float, if owned by other persons, might have been a proper warehouse for storing the goods on the default of the consignee, the transfer thereto of the goods did not terminate the employment and responsibility of the defendant as carrier, and that he was responsible for a loss by fire, without any neglect on his part.
    Destruction by an accidental fire, not caused by lightning, is not the act of God, so as to excuse a carrier, although the proximate cause of the burning of the goods in his charge was a sudden gust of wind diverting the course of a distant fire so as to drive the flames in the direction of and upon them.
    Appeal from the supreme court. Action to recover the value of goods burnt in the great fire at Albany, August 18, 1848. Upon the trial at the Albany circuit, before Mr. Justice Parker, these facts appeared. The defendant was a common carrier between New-York and Albany, on the Hudson river. In that character it received the plaintiff’s goods upon the barge Superior, at New-York, marked for A. W. Miller, Rochester, care P. M. Adams, Albany. Adams was the known general agent at Albany for the Rochester City Line of Canal Boats; common carriers on the Erie canal. The barge, with the plaintiff’s goods on board, arrived at Albany and hauled alongside a stationary float or floating warehouse, as it was called indifferently by the witnesses, between five and six in the morning of August eighteenth. The float was a vessel one hundred and twenty feet long and forty-five feet wide, covered with a roof and having several doors, each of which was appropriate to the use of some one of the several transportation lines upon the canals. It belonged to and was in the exclusive use of the defendant for the purpose of discharging freight in this manner: if the canal boats were ready to receive the freight consigned to their line, it was run off from the barge on trucks across the float to the proper door, and there delivered; if the boats were not ready, it was piled at the door and remained till the boats arrived to take it away, in some instances as long as a week or ten days. The barge commenced discharging her freight immediately after mooring alongside the float. Adams visited it between eight and nine o’clock in the morning. He had a boat, then lying within a quarter of a mile of the barge, ready to receive the goods consigned to him. Most of the barge’s freight consigned to other lines than Adams’, had been taken away by them before noon. The fire broke out a quarter of a mile from the barge, about noon. About one o’clock a gale of wind came up suddenly and blew the fire in the direction of the pier where the barge was lying. It reached the pier in a few minutes and consumed all the buildings upon it, with the float, and the barge. About three-fourths of the plaintiff’s goods had been piled upon the float, at the door destined for Adams’ boat to receive them; the remainder were still upon the barge. All were consumed. The crew of the barge made all practicable efforts to save the property.
    The defendant’s counsel insisted that as to that portion of the goods which remained upon and were consumed with the barge, they were destroyed by a sudden gust or tempest of wind, blowing the fire thereon, and that it should be submitted to the jury, whether the destruction was not the act of Grod, within the meaning of the rule on the subject, with instructions that if they so found, the defendant was not liable. As to the goods which had been removed to the float, he insisted that the defendant had ceased to be responsible as carrier, for the reason that the consignee not being ready to receive them, after actual notice of their arrival, they had been stored according to the custom and known course of business of the defendant in what was a proper warehouse, and the defendant thereafter held them as warehouseman, and was responsible only for ordinary diligence in preserving them.
    The judge ruled against both propositions, under exceptions by the defendant, and directed a verdict for the plaintiff for the whole value of the goods on the barge and on the float. It was rendered accordingly, and the judgment thereon having been affirmed at general term in the seventh district, the defendant appealed to this court.
    
      C. Van Santvoord for the appellant.
    I. The proposition that the defendants continued under the liability of common carriers, until the actual delivery of the goods to the next line, is unreasonable, and cannot be maintained. It is sometimes stated in the books and in decided cases, that a carrier remains liable until the goods are delivered. But this is inaccurate; the rule is more accurately stated (2 Kent Com., 604) as follows: “When the responsibility of a carrier has begun, it continues until there has been a due delivery by him, or he has discharged himself of the custody of the goods in his character as a common carrier.”
    II. The liability of the defendants as common carriers ceased, and their liability as storers or warehousemen began, at least as soon after the arrival of the goods at Albany, as the defendants were ready to deliver them, and would have delivered them if a boat of the Rochester City Line, to whose agent they were directed, had been ready to receive them. (Angelí on Carriers, % 302, and cases cited; id., 75.) When the carrier arrives at the end of his route, and is ready to deliver the goods, he has fulfilled his contract as carrier, in'respect to goods whose destination is further on by a distinct and independent line. (Angelí on Carriers, %% 304, 295; Garside v. Trent and Mersey Navigation Company (4 T. R., 581); Thomas v. The Boston and Providence Railroad Company (10 Metc., 472), also Whaley v. Ray (3 Espin., 74). As to the bulk of the plaintiff’s goods, which were deposited in the warehouse, it is settled by the case of Garside v. The Trent and Mersey Navigation Company (4 T. R., 581), that the liability of the defendants was that of a storer or warehouseman, and not that of a common carrier. As to the lot of nails which happened to be left on the barge, these are within the principle stated by Buller, Justice, in Garside v. Trent and Mersey Navigation Company; the same principle which is recognized in other cases, as Platt v. Hibbard (7 Cow. R., 797); Thomas v. Boston and Providence Railroad Company. (10 Metc., 472), et al.
    
    III. The obligations, duties and rights of a common carrier, at the end of his route, which is also the place of the ultimate destination, in respect to the delivery of the goods in his charge, are in many respects different from those of a carrier at the terminus of his route, which is the intermediate port between the port where the goods are received and that of their ultimate destination, in respect to goods whose ultimate destination is further on ; and the rules and cases which determine the liability of the carrier in one case, are inapplicable to the other, in which there are different material circumstances. In the case of the carrier at the port of the ultimate destination of the goods, after noticp of the arrival of the goods, and the lapse of a reasonable time for the consignee to take them away, or where the consignee is dead or absent, or refuses to "receive the goods, the carrier is bound to secure them on board his barge or other place, for the owner or consignee—in which case he holds them under the responsibility of a warehouseman—or he may store them with a responsible third party, and then he ceases to be liable, either as carrier or warehouseman. (Ostrander v. Brown (15 John. R., 42); Fisk v. Newton (1 Denio, 45). And in this case of the carrier at the port of the ultimate destination of the goods, a reasonable time after notice, means time reasonably sufficient to come and take the goods. But in the case of the carrier at the terminus of his route, at the intermediate port, he cannot discharge himself of all responsibility respecting the goods, by insisting that the agent of the next line in succession, who may have no boat ready to receive the goods, shall take the goods within a time reasonably sufficient to take them; and hence, and by reason of the difference in respect to his obligations and duties in other respects, the difference in the rule as to- his liability, as held in Garside v. The Trent and Mersey Navigation Company, and other cases.
    IV. Assuming that the fire by which the goods were destroyed, was communicated from a distance by a high wind, and that their destruction by fire was occasioned by a sudden gust or tempest, the destruction of the goods is attributable to the act of God, within- the common law meaning of the words. 1. The distinction is between losses resulting from an act of God, as by storm, tempest or lightning (which in the common law have always been held to be acts of God, as technically used), for which the carrier is not liable, and destruction or damage from negligence, mischance or accident, although inevitable, not occasioned by storm, lightning, tempest, or the like causes. Amies v. Stevens (1 Str., 128); Colt v. Meacham (6 J. R., 160); Story on Bailments, (527, § 516.) 2. The cases of Forward v. Pittard (1 T. R., 2.7); Hyde v. Trent and Mersey Navigation Company ( 5 T. R., 389), are cases of mere mischance, not attributable to acts of God, as occasioned by storm, lightning or tempest. 3. The immediate and proximate cause of the destruction of the goods, being the sudden gust or tempest, is alone to be regarded. (Story on Bail., 525, § 515); Waters v. The Merchants’ Louisville Insurance Company (11 Peters, 213, 223).
    
      B. Davis Noxon for the respondent.
   Willard, J.

The defendants were common carriers from New-York to Albany. On the 14th or 15th of August, 1848, they received on board their boat, at New-York, the goods in question, marked “for A. W. Miller, Rochester, care F. M. Adams, Albany.” Adams was the general agent at Albany for the Rochester city line of canal boats in 1848, to whom the goods should, in the regular- course of business, have been delivered to be forwarded to their destination.

The goods arrived at Albany in the defendants’ tow-boat, in the morning of the 18th of August, in the same year, and before they were delivered to Adams, and while a part were still on board the tow-boat, and the residue on board a floating warehouse, 'belonging to the defendants and used by them to aid in distributing their cargoes to the various lines on the canal, they were destroyed by the great fire in that city, which commenced about noon of that day.

The important question is, whether this loss shall be borne by the defendants or by the plaintiff.

There was no dispute about the facts. Adams, the consignee, had a boat near by, ready to receive the goods when the defendants were prepared to deliver them. There was no evidence that the goods remained with the defendants in consequence of any negligence in Adams to receive them. Had there been, the question of negligence should have been submitted to the jury.

The liability of the defendants, as common carriers, had not terminated when the fire occurred. They still had the custody of the goods, and had a further duty to perform in respect to them. They were not keeping them because there was no one ready to receive them; for the consignee was in Albany, had been on board the boat and was ready to receive them. (Story on Bailments, % 542.)

Common carriers are regarded as insurers of the property intrusted to them, and are responsible for all injuries, except such as are occasioned by the act of Grod and the public enemies. (Angell on Carriers, %% 46, 67; Story on Bailments, % 489; 2 Kent's Com., 597; Goold v. Chapin, 10 Barb., 612; Foote v. Storrs, 2 Id., 326.) A destruction by fire, unless occasioned by lightning, does not fall within the exception. (Story on Bailment, ^ 507, 511, 528; Hyde v. The Navigation Company from Trent to the Mersey, 5 T. R., 389; Gatliffe v. Bourne, 4 Bing. N. C., 314.)

The judgment of the Supreme Court should be affirmed.

Jewett, J.

From the facts in this case, it may be assumed that the several articles of property in question were delivered to and received by the defendant as a common carrier, to carry from New-York to the city of Albany, and there to deliver the same to F. M. Adams, and that there was no special contract between the parties, limiting the responsibility of the defendant as such common carrier. The rule is not disputed, that common carriers are responsible for every injury done to goods intrusted to them to carry, unless it proceeds from the act of God or the enemies of the land.

There is no evidence in this case to show how the fire, by which the property in question was destroyed, originated. The presumption, therefore, is that it arose from some act of man. (Angelí on Carriers, % 156.) A loss arising from an accidental fire, or conflagration of a city, without any default whatever on the part of the carrier, it is well settled, furnishes no excuse for the carrier, for it does not fall within the exception. (2 Kent's Com., 602; Story on Bailments, 507, 511, 528; Hyde v. Trent Nav. Co., 5 T. R., 389; Gatliffe v. Bourne, 4 Bing. N. C., 314; Hollister v. Nowlen, 19 Wend., 234.) There is no error, therefore, in the decision of the circuit judge, that the loss was not caused by the act of God within the rule referred to.

The defendant carried the goods up the river on board his barge Superior, to Albany, where they arrived early in the morning of the 18th of August, on which day they were destroyed by fire. Previous to such destruction a portion of them were unloaded from the barge and put into a float in the Albany basin owned by the defendant; being a stationary floating craft, kept for the purpose of receiving goods brought up the river, with various apartments for the different transportation lines going west. It had been there several years, and it was the custom to discharge goods brought up the river into it, from which the goods were reshipped into canal boats to be taken to their destination on the canals; the canal boats coming alongside of the float, and receiving the goods immediately from the float. As to that portion, it was contended by the counsel for the defendant that the defendant was not liable as carrier; because, it was insisted, that it had ceased to be a carrier in respect to them, and had assumed the character of a storer or warehouseman before the loss; and that happening without any fault or neglect of the defendant, the defendant was not liable in that new capacity. This new relation is assumed to have taken place, on the ground that this portion of the goods w7as placed in store in a proper warehouse, consequent upon the neglect or refusal of Adams, the consignee, to receive them, after sufficient notice to him of the arrival of the goods, and their being ready for delivery to him. The general rule is, that a common carrier is bound, not only safely to carry, but safely to deliver, a parcel which he has undertaken to carry, at the place to which it is directed to the consignee personally. (Gibson v. Culver, 17 Wend., 305; Ostrander v. Brown, 15 John., 42; Fisk v. Newton, 1 Denio, 46.) Personal delivery, however, is sometimes dispensed with, in the case of carriers by ships or boats. Notice given to the consignee of the arrival and place of deposit, comes in lieu of personal delivery. (2 Kent's Com., 605.) So when goods are safely conveyed to the place of destination, and the consignee is dead, absent or refuses to receive, or is not known, and cannot, after due efforts are •made, be found, the carrier may discharge himself from further responsibility by placing the goods in store with some responsible third person in that business, at the place of delivery, for and on account of the owner. When so delivered, the storehouse keeper becomes the bailee and agent of the owner in respect to such goods.

In this case the goods were carried to Albany, but they were not delivered to Adams; he was neither dead nor absent; nor did he refuse to -receive the goods; nor did the defendant place the goods in store with a responsible third person engaged in that business at the place of delivery, for and on account of the owner. In truth, the facts negative any such assumption. The most that the facts warrant us in saying, in respect to a delivery or storing, is that the defendant was engaged in transferring the goods from the barge to the float, preparatory to making a delivery from that craft to Adams, who had a boat ready to take the goods lying at the dock near the Boston ferry at the time. Indeed, there does not appear to have been any intention on the part of the defendant to change its relation to the goods, merely by the transfer to the float. In my opinion there is no good ground to say that it had changed its character of a common carrier to that of a warehouseman by that act. There was nothing to show an intention to do that, if such had been the intention. The facts and circumstances show conclusively that the defendant, instead of being engaged in storing the goods, was placing them in a situation to deliver them according to its contract. The goods had not been placed entirely in a condition to deliver when the accident happened. The defendant was at no time discharged of the responsibility which it had assumed as a common carrier.

The counsel on this argument has made a point, that the defendant had a right to go to the jury upon the question, whether a reasonable time for the consignee to take away the goods had not elapsed, if he had a boat ready. A short answer to that is, that no request or suggestion of that kind was made on the trial, and it cannot be heard here for the first time.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.  