Opinion
November, 1894.
William O. Campbell, for appellant.
W.P. Prentice, for respondent.
No claim is made that the goods in suit were injured while in the course of actual transportation by the defendant carrier, and the only question raised by the appellant relates to the defendant's liability for the damage occurring, under the state of facts above recited, either in the capacity of carrier or of warehouseman.
It is well settled that a carrier of goods retains its character as such, with the attendant liability as insurer, until the goods have been delivered to the consignee either actually or constructively, and that to constitute a constructive delivery there must be notice of arrival and the affording of a reasonable time for the removal of the goods by the consignee. After this reasonable time has elapsed, and the carrier should fail to divest itself of all liability by storing the goods for the consignor, as it may, a liability as warehouseman attaches, and an absence of ordinary and reasonable care of the goods must be shown in order that a liability for their injury may be imposed. Tarbell v. Royal Exchange Shipping Co., 110 N.Y. 180; McKinney v. Jewett, 90 id. 271; Redmond v. Liverpool, etc., Co., 46 id. 578; McAndrew v. Whitlock, 52 id. 40; Fenner v. R.R. Co., 44 id. 505; Draper v. Prest., etc., D. H.C. Co., 118 id. 118. The circumstances of the particular case must control in determining the extent of this reasonable time ( McAndrew v. Whitlock, 52 N.Y. 40), and, in this connection, the consignee's obligation to exercise due diligence in removing the goods is a material element of consideration. Tarbell v. R.E.S. Co., 110 N.Y. 180.
As to the defendant's liability as carrier, then, the case turns upon the question whether or not the space of one day afforded a reasonable time for the unloading of the hops in suit, and, in view of the circumstances of the case, we agree with the learned referee that this was such a reasonable time.
There was no provision for "lay days" in the contract of carriage, and the consignee, at intervals during the day of the lighter's arrival, expressed his intention of removing the goods before night, which removal, by the means contemplated, could readily have been accomplished in a short space of time, and it appears from the evidence, considering the perishable nature of the goods, that the carrying out of its expressed intention by the consignee would have been but the performance of its duty to the carrier as imposed by law. There is ample evidence to support the referee's finding that upon this particular day the state of the weather reasonably admitted of the safe transportation by the consignee of the goods, notwithstanding the conflict upon this point, and the defendant is in no way to be held accountable for errors of judgment on the part of the consignee's servants with regard to the expediency of carting the hops during the period in question.
Not being liable as carrier for the injury which occurred to the goods, is the defendant chargeable with negligence in caring for them as warehouseman?
That the defendant's agent, the captain of the lighter, exercised reasonable care in covering the hops for the night cannot, we think, be seriously disputed, and, indeed, the appellant's argument upon this point is confined to the proposition that it was the defendant's duty to place the goods in storage for their proper protection.
It is not contradicted that the captain carefully employed the usual means provided for protecting goods upon a lighter, nor that these means, under ordinary circumstances, would suffice for their purposes, and in view of the repeated expressions by the consignee of its intention to remove the goods that day, together with its failure to give notice of its change of intention until the end of the day, it cannot be questioned that the placing of the goods in storage over night would have been an act of extraordinary diligence not required of the defendant. The duties of the parties were correlative ( Tarbell v. R.E.S. Co., 110 N.Y. 180), and those of the defendant were not to be increased by the consignee's failure to observe those on its part to be performed. Button v. R.R. Co., 18 N.Y. 256.
The appellant raises no points which require a further discussion, and we are well content to affirm the judgment, whereby the respondent appears to have obtained but justice.
The judgment should be affirmed, with costs.
BOOKSTAVER and PRYOR, JJ., concur.
Judgment affirmed, with costs.