Opinion
December Term, 1859
Henry R. Selden, for the appellants.
John H. Reynolds, for the respondents.
Although we cannot fail to see that the destruction of the goods in question was inevitable and that no blame can be attributed to the defendants for their loss, yet the question whether that loss shall be brone by them or by the plaintiffs must be decided according to the principles which are applicable to the legal relation which the defendants sustained to the goods at the time the fire occurred. The cause and circumstances of the destruction were such as a common carrier is bound to answer for, but not such as suffice to charge a bailee for custody merely. The important inquiry therefore is, whether the goods at their destruction were in the custody of the defendants as carriers.
The goods were delivered to the defendants in New York to be carried to Albany, and there delivered to another carrier to be transported to Brockport, N.Y. All this appears from the receipt given on the shipment of the goods, which discloses plainly these facts and shows that the parties to whom delivery was to be made at Albany were to receive the goods not as owners nor as general consignees of the owners, but as carriers. In Van Santvoord v. St. John (6 Hill, 157), it was held that the first carrier's obligation was discharged when he had safely delivered the goods to the next carrier, but that case did not present any question as to what would amount to such a delivery. The same remark is applicable to Ackley v. Kellogg (8 Cow., 223). In both cases the second carrier had actually received the goods and was chargeable as carrier for their safety. It is found by the referee in this case — and as we have not the evidence we must certainly assume the finding to be well warranted — that the Atlantic Line did not receive the goods from the defendants within a reasonable time after notice was given of their arrival and a request that they should be taken away. Assuming that such notice, if given to the owner at the end of the transit, and the unreasonable delay in taking the goods, would have put an end to the liability of the defendants as carriers, yet, as I think, the cases and the nature of the transaction itself point to a distinction between that case and the case of consignee or second carrier. If an undue refusal to receive by the the owner at the end of the transit would justify the carrier in renouncing all further care over the goods, it clearly would not in the case of consignee or subsequent carrier, where these relations were known to the first carrier. In Ostrander v. Brown (15 Johns., 43), Mr. Justice PLATT, giving the opinion of the court, says: "Suppose the consignees had been dead or absent or had refused to receive the goods in store, what would have been the carrier's duty? Certainly he would have no right to leave them on the wharf or in the street without protection. He would not be justified in abandoning the goods. He had notice that S. and B. were the owners, and if M. and O. would not take charge of the goods as consignees, he ought to have secured them on board his vessel or in some other place of safety." This was said in a case where the goods were left unprotected on a wharf, and the duty of protection was the only point to be made out. In Fisk v. Newton (1 Denio, 45), the goods had been stored; the consignee not being found after due search, and the storekeeper having failed and the goods being missing, the question was whether such storing was a defence to the carrier, and it was held that he was not liable. Now the goods in this case were transferred from the boat to the float to enable the defendants to complete their contract by making delivery. The float was not a storehouse in the proper sense of that word. It was a part of the machinery to facilitate the business of carriage, which the defendants adopted for their own convenience in performing their contracts to carry and deliver. When the goods were unladen from the boat on which they were brought up the river and placed upon the float, it was a step in performance of the contract to deliver, but not a delivery. The performance was not by that act complete. It was a mode of delivery which undoubtedly promoted the convenience of both sets of carriers, but it did not alter the responsibility of the first carrier who had not yet made delivery. There was no refusal to receive on the part of the second carrier, but there was unreasonable delay. The defendants, however, did not find this delay so unreasonable as to feel compelled to make any new disposition of the goods. They did not remove them from the exposure of a floating vessel, from different parts of which goods were being delivered to different lines, and place them in store. They indulged the other carriers in the delay, as from the course of business was natural and suitable; and until some act was done on their part indicating a clear purpose to make an end of their relation of carriers as to these goods, I think their responsibility as such continued. No owner can be supposed to have an agent to superintend each transhipment of his goods, in the course of a long line of transportation; and if the responsibility of each carrier is not continued until delivery in fact to the next carrier — or at least until the first carrier, by some act clearly indicating his purpose, terminates his relation as carrier — we shall greatly diminish the security and convenience of those whose property is necessarily abandoned to others, with no safeguards save those which the rules of law afford. The stringency of the rules belonging to this species of bailment had its origin in public policy, which long experience has approved as wise and salutary. Any other rule in respect to the duty of carriers at such points of transhipment, when unmodified by custom, than that above contained, would give rise and afford protection to the same class of mischiefs against which public policy has protected the community by the strict responsibility imposed upon carriers in other cases.
The defendants did not change their responsibility as common carriers, and adopt that of warehousemen, by removing the goods from their barge to their float, on their arrival at Albany. The change was their own act without consultation with or notice to the plaintiffs or their agent; the goods were still subject to their control, and there had been no actual delivery. The float was in effect a substituted means of conveyance furnished by the defendants. By placing the goods on that, the transit from the plaintiffs to their agent was not terminated. It was so decided by this court in the case of Miller v. The Steam Navigation Company (6 Seld., 431). In that case, as in this, there had been a removal of the goods from a barge to a float, and Judge JEWETT said, "there was nothing to show an intention to store the goods, or anything to justify the defendant 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 them when the accident happened. The defendant was at no time discharged of the responsibility which it had assumed as a common carrier."
There is undoubtedly an important difference between that case and the one which I am now considering. In that there had been no delay by the agent of the intended receiving line in furnishing the requisite means for the delivery of the goods; in this case there were repeated delays. Notices that the goods were ready for delivery and calling for their reception, had been given to the agent of the Atlantic Line on three successive days. No canal boat was sent to the float to receive the goods on either day, but on the third day the agent on being served with the notice "replied that he was then taking some goods from the Eckford Line of tow boats on the river, and that as soon as he got them on he would have them shove up to the float and take on what goods they had for his line." The goods were retained on the float until they were consumed by a fire on the afternoon of the same day. The referee finds that the Atlantic Line did not receive (he doubtless meant furnish the means to receive) the goods within a reasonable time after notice from the defendants of the arrival of the goods and after the defendants had requested the agent of that line to take them away. The question is whether by reason of this delay the defendants were relieved from their responsibility as common carriers at the time of the fire. Of course there had been no delivery. The goods were still in possession of the defendants, and subject to their control. If they had the power to change the character of their possession, when was it changed? Not surely at the moment of serving the notice. A reasonable time for taking possession of the goods by the Atlantic Line must undoubtedly have first elapsed. If there had been no delay there could have been no hiatus between the responsibilities of the two. When the responsibility of the defendants had terminated, that of the Atlantic Line would have commenced. When goods are forwarded by connecting lines, the owners have a right to consider them under the safeguard of a constant responsibility until they reach their place of destination. If a more lax rule should be established it would greatly prejudice the interests of the freightors on these extensive lines. To be sure, where there is no partnership between the proprietors of the several lines they should not be held responsible for the conduct of each other, nor can they be. In this case the delay of the Atlantic Line in receiving the goods did not impose upon the defendants the necessity of retaining possession of them beyond a reasonable time for their reception after service of the notice. They might have unquestionably deposited the goods in a warehouse, and thus have relieved themselves from further responsibility; or they might, as they did, elect to retain them in their own possession. As they chose to retain them it must have been in their original character as common carriers. If they had intended to make a change, common fairness required that they should have given notice to the Atlantic Line to that effect. Even that would have been insufficient, as the agent of that line had no authority to relieve the defendants except by receiving the goods in behalf of his principals. No great wrong can be done to common carriers in ordinary cases by holding them to their responsibilities as such until they part with the possession and control of the goods, either by delivering them to the consignees or depositing them in a warehouse where, as in this case, one is accessible. It may subject them to some inconvenience, but it is better to do that than to expose the owners of goods, who are not usually present so as to protect their own interests, to losses by reason of the misconduct or omissions of the managers of the different lines at their places of connection. In this case the defendants retained the goods on their float probably from an expectation that they would soon be taken by the Atlantic Line, and possibly to save themselves the trouble of depositing them in a warehouse. In doing so they consulted no one, but acted at their own option, and as I conceive at their own risk.
It is not intended to decide that common carriers can in no case change their peculiar responsibilities while they retain possession of the goods confided to them. They may not be able with due diligence to find any one to receive the goods in behalf of the owner, and there may not be any safe place of deposit within their reach, and in such case their duties as carriers would end, and they would then become mere ordinary bailees. They may also deposit the goods in their own warehouse, and thus absolve themselves from any further responsibility as common carriers. That, however, can only be where there has been a failure by the owner or his agent to receive them.
There may be exceptions to the general rule as to the delivery of goods where they are conveyed by a railroad company directed to some station short of the termination of the route, or where they are transported by a steamer to be left at some wharf intermediate the termini of the voyage, and where by their known course of business the carriers can neither give notice to nor seek out the owners or consignees, and where no time can be spared to deposit the freighted goods in a warehouse. In such cases a delivery at the usual place at the station or on the dock, with notice if the person to receive them is present, or without notice if no one is present to receive any for or on behalf of the owner or consignee, would probably be sufficient. In the present case, however, there is nothing calling for an exception.
The judgment of the court below should be reversed, and there should be a new trial.
COMSTOCK, J., dissented; SELDEN, J., expressed no opinion.
Judgment reversed, and new trial ordered.