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without further charge, and consequently,
unless guilty of negligence, in the want of
ordinary care in the custody of the goods,
they are not liable to the plaintiff for the
alleged loss of a part of the goods." In
Norway Plains Co. v. Boston & Maine
Railroad Co. I Gray, 263, it is decided,
that the rule requiring carriers to make
personal delivery to the consignee does
not apply to railroads, transportation by
which more resembles sea-carriage than




[book III.

* 189 There is, perhaps, no objection to * this usage strengthen-

ing itself into law. But we think in that case, that the

* 190 railroad carrier should give notice forthwith, on * the arri-

val of the goods, to the consigned, if his residence is
known, or can be found by any reasonable exertions. We think
the law should make this requirement, and this so positively
that no usage against it should be permitted to control the law ;
at least not unless it were quite universal, and well know^n to all,
and there is some disposition to hold the law thus.(w)^

carriage by means of wagons and similar
vehicles; that the nature of transporta-
tion of freight by railroad is such that the
implied contract between the parties is
that the company will transport the goods,
discharge them from the cars upon a suit-
able platform, and there deliver them to
the consignee if he is ready to receive
them, and if he is not, that they will place
them securely and keep them a reasonable
time, ready to be delivered when called
for ; that from this view of the duty and
contract between the parties, the company
are first common carriers, and after that
warehousemen, responsible as the former
until the goods are removed from the cars
and placed upon the platform, and if, on
account of their arrival in the night, or
for any reason, the consignee is not then
ready to receive them, it is the duty of
the company to take care of them under
the liability of warehousemen or keepers
of goods for hire. And the court are
strongly inclined to be of the opinion that
it is not necessary for the company to give
notice of the arrival of the goods, but that
the nature of the transportation is such as
to dispense with it. And see Smith v.
Nashua and Lowell Ti. R. Co. 7 Foster
(N. H.), 86. But in Richards V. The Lon-
don Railway Co. 7 C. B. 839, it was held,
that where a railway company employ por-
ters at their stations to convev passengers'
lliggage from the railway carriages to the
carriages or hired vehicles of the passen-
gers, the liability of the company as car-
riers continues until the porters have dis-
charged their duty. That was an action
on the case against the defendants for the
loss of a package. The first count of the
declaration stated, that the defendants
were the owners and proprietors of a rail-
way for the carriage and conveyance of
passengers and their luggage, &c., from A
to B, for hire ; that the defendants were
common carriers for hire in and upon the
said railway ; that the wife of the plaintiff,

at their request, became a passenger in
and upon the railway, to be carried and
conveyed therein and thereby from A to
B, together with her luggage, consisting
of a dressing-case, &c., also to be carried
and conveyed by the defendants, as such
carriers, in and upon the railway from A
to B, and there, to wit, at the station or
terminus at B, safely and securely deliv-
ered for the plaintiff, for reasonable re-
ward to the defendants in that behalf ; and
the breach alleged was, that the defend-
ants, not regarding their duty, did not use
due and proper care in and about the car-
riage and conveyance of the dressing-case
from A to B, but took so little and such
bad care in and about the carrying and
conveying the same, that by and through
the curelessnes.i, net/ligence. and im/n-oper
conduct of the defendants in the premises,
the dressing-case was lost. It was proved
tliat the plaintiff's wife became a j)assen-
ger by a first-class carriage, to be conveyed
from A to B ; that tlie dressing-case was
placed in the carriage under the seat ; that
on the arrival of the train at B, the por-
ters of the company took ujion themselves
the duty of carrying the lady's luggage
from the railway carriage to the hackney
carriage which was to convey her to her
residence ; and that on her arrival there
the dressing-case was missing. Held, that
the duty of the defendants as conimoa
carriers continued until the luggage was
placed in the hackney carriage ; and that
the evidence entitled the plaintiff to a ver-
dict upon the first count. And see Batclier
V. The London & South AVestern Railwav
Co. 29 E. L. & E. 347 ; s. c. 16 C. B. 13.
{«) Michigan Central Railroad Co. i".
Ward, 2 Mich. 538, overruled in Midi. C.
R. R. Co. V. Hale, 6 Mich. 243. See Farm-
ers and Mechanics Bank v. Champlain
Transportation Co., ante, p. * 187, note (s)
and Gibson v. Culver, ante, p.*187 note (</),
that notice may be dispensed with when
usage fully warrants it. See also the Ian-

1 In England, a railroad company is liable as a carrier until it gives notice to the
consignee of the arrival of the goods, and a reasonable time has expired for the latter

CH. XI.] BAILMENT. * 190

It may be remarked, that, however railroad companies or other
inland carriers may adopt the form and phraseology of bills of
lading and other maritime contracts, the essential difference in
the nature of the duties they undertake, will not be disregarded
by the courts, (v)

The duty of express companies differs from that of railroad
carriers, for they are bound to deliver the goods to the consignee,
and make all reasonable exertions for that purpose, (^^v) But if
after such efforts they cannot so deliver them, they are liable
only as warehousemen, for negligence, (vw)

guage of Hubbard, J., quoted in the pre- 430; Packard i - . Earle, 113 Mass. 280;

ceding note, and Shaw, C. J., Norway Union Ex. Co. v. Ohlemaun, 92 Fa. 323 ;

Plains Co. v. Boston & Maine Railroad Co. Bennett w. Northern Pac. Express Co. 12

1 Gray, 274 ; and notice was held not ne- Ore. 49.

cessary, in Neal v. Wilmington, &c. R. R. {vw) Adams Express Co. v. Darnell,

Co. 8 Jones, L. 482; Jeffersouville R. R. 31 Ind. 20. The obligation of railroad

Co. V. Cleveland, 2 Bush, 468. companies to deliver goods to the con-

(v) See the opinion of Grier, J., in signee's warehouse is fully considered,

Hemphill v. Cheuie, 6 W. «Sb S. 62, cited and in especial reference to grain elevators,

in note {iv). in Vincent v. Chicago, &c. R. R. Co. 49

(vv) Witbeck u. Holland, 55 Barb. 443 ; HI. 33. See people v. Chicago, &c. R.

38 Howard, Pr. 273. affirmed in 45 N. Y. Co. 55 HI. 95 ; Hoyt v. Chicago, &c. R.

13; Am. Union Ex. Co. v. Wolf, 79 111. Co, 93 111. 601.

to remove them. Mitchell r Lancashire, &c. Ry. Co. L. R. 10 Q. B. 256, and in some
states in this country tie law holds the carrier to similar responsibilitv. Black
V. Ashlev, 80 Mich. 90; Pinnev v. First, &c. R. R. Co. 19 Minn. 251; Hedges v.
Hudson River R. R. Co. 49 N. Y. 223 ; Pelton v. Rensselaer, &c. R. R. Co. 54
N. Y. 214.

In other States notice is not absolutely required. " The question is, has suit-
able time been allowed to a person living in the vicinity of the place of delivery
to remove the goods in the ordinary course and in the usual hours of business';
more prompt diligence being required if the consignee has been informed of the
shipment of the goods bv receipt of a duplicate bill of lading or otherwise." Louis-
ville, &c. R. R. Co. V. (iden, 80 Ala. 38, 41 ; Leavenworth, &c. R. R. Co. v. Maris,
16 Kan. 333; Union Pacific Ry. Co. v. Moyer, 40 Kan. 184; Louisville, &c. R. R. Co.
V. Mahan, 8 Bush, 184; Maiguan v. New' Orleans, &c. R. R. Co. 24 La. An. .333;
Moses V. Boston & :Maine R. R. 32 N. H. 523 ; Morris, &c. R. R. Co. ads. Avres,
5 Dutch. 393 ; Wiii.slow v. Vermont, &c. R. R. Co. 42 Vt. 700; Lemke v. Chicago,
&c. R. R. Co. 39 Wis. 449.

In other States, tlie courts, following the early Massachusetts cases referred to,
ante, p. *188 note (t) have held that the liability of the railroad company changes from
that of a carrier to that of a warehouseman, when the goods are unloaded and put in
a proper place to await removal by the consignee, and that notice to the consignee
is unnecessary. Jackson r. Sacramento Vallev R. R. Co. 23 Cal. 268 ; Southwestern
R. R. Co. V. Felder, 46 Ga. 4.33; Rothschild "r. Michigan Central R. R. Co. 69 111.
164; Cincinnati, &c. R. R. Co. v. McCool, 26 Ind. 140 (see, however, Pittsburgh,
&c. Ry. Co. V. Nash, 43 Ind. 423); State v. Creeden, 78 la. 556; Kice v. Hart, 118
Mass. 201 ; Barker v. Brown, 138 Mass. 340 ; Gashweiler i: Waliash, &c. Rv. Co
83 Mo. 112; Chalk v. Charlotte, &c. R. R. Co. 85 N. C. 423; Shenk v. Philadelphia,
&c. Co. 60 Pa. 109 (see also Nat. S. S. Co. v. Smart, 107 Pa. 492) ; Spears v. Spartan-
burg, &c. R. R. Co. 11 S. C. 158.

In Tennessee by statute notice must be given to the consignee, hut the liability of
the railroad changes from the liability of a carrier to that of a warehouseman, as
soon as the goods are unloaded. Butler v. East Tenn. & Va. R. R. Co. 8 Lea, 32. In
Chicago, &c. Ry. Co. v. Sawyer, 69 111. 285, it was held, that if a railroad receives
goods liable to duty which m'ust be delivered by law at a bonded warehouse, it is liable
as a carrier until they are so delivered.




[book III.

Carriers by water cannot usually deliver goods at the residence
of their consignees without land carriage, and the greatest
* 191 * amount of goods carried by water is consigned to persons
whose warehouses, or stores, are adapted to receive such
goods by being near the water, and generally on the wharves on
which they may be lauded. Hence a usage prevails very generally
to deliver such goods by lauding them on a wharf, and giving
immediate notice to the consignees, (i^) And it is held, that

(if) Dixon V. Dunham.U 111. 324 ;Craw-
ford V. Clark, 15 111. 561 ; Hyde v. Trent
& Mersey Navigation Co. 5 T. II. 389. In
the case it was held, that where common
carriers from A to B charged and received
for cartage of goods to the consignee's
house at 13, from a wareliouse there,
where they usually unloaded, but which did
not belong to them, they must answer for
the goods if destroyed in the warehouse
by an accidental fire, though thej' allowed
all the profits of the cartage to another
person, and that circumstance was known
to the consignee. This was a case of
carriage by laud. The ground upon
which the defendants were held liable
was, that they made a specific charge for
cartage from the warehouse where they
unloaded to the house of the consignee.
The general question, whether a carrier
by laud is bound to make a personal de-
livery, was not decided, though all the
judges e.xpressed their opinion upon it ;
that of Lord Keni/on being against such
liability, and that of all the other judges
being iu favor of it. All the judges,
however, agreed that a carrier by water,
bringing goods from a foreign port, was
not bound to make a personal delivery
to the consignee. Lord Kenyan, iu the
course of his opinicm, said : " If the de-
fendants here be liable, consider how far
the liability of carriers will be extended:
it will affect the owners of ships bringing
goods from foreign countries to merchants
in London. Are they bound to carry the
goods to the warehouses of the merchants
here, or will they not have discharged
their duty on landing them at the wharf
to which they generally come ? It would
be strange, indeed, if the owners of a West
Indiaman were held liable for any accident
that happened to goods brought by them
to England, after having landed them at
their usual wharf." And Buller, J., said:
" It does not appear to me that the diffi-
culties suggested respecting foreign ships
exist. W hen goods are brought here from
foieign countries, they are brought under
a bill of lading, which is merely an under-
taking to carry from port to port. A ship
trading from one port to another has uot


the means of carrying the goods on land,
and, according to the established course
of trade, a delivery on the usual wharf is
such a delivery as will discharge the car-
rier." And, per Grose, J.: " The case of
foreign goods brought to this country de-
pends on the custom of the trade, of which
the persons engaged iu it are supposed to
be cognizant; by the general custom the
liability of ship carriers is at an end when
the goods are landed at the usual wharf."
By the custom of the River Thames, the
master of a vessel is bound to guard goods
loaded into a ligliter, sent for them by the
consignee, until the loading is complete,
and cannot discharge himself from that
obligation by telling the lighterman he
has not sufficient hands on board to take
care of them. Catley v. ^yintringham,
Peake, Cas. 150. But it has been much
contested, whether the master is by the
usage bound to take care of the lighter,
after it is fully laden, until the time when
it can be properly removed from the ship
to the wharf. At a trial on this question,
it was he/d that the master was not obliged
to do this. Kobinson v. Turpin, cite<l in
Abbott on Shipping, 335. When ships
arrive from Turkey, and are obliged to
perform quarantine before their entry into
the port of London, it is usual for the con-
signee to send down persons, at his own
expense, to pack and take care of the
goods ; and therefore, where a consignee
had emitted to do so, and goods were
damaged by being sent loose to the shore,
it was held that he had no riglit to call
upon the master of the ship for compensa-
tion. Dunnage v. Joliffe, cited in Abbott
on Shipping, 335. The general question
as to the duty of delivery, in the case of
carriers by water bringing goods from a
foreign port, was much discussed in the
case of Cope r. Cordova, 1 Kawle, 203.
Rogers, J., delivered the judgment of the
court, as follows : " The substance of a
bill of lading is a formal acknowledgment
of a receipt of goods, and an engagement
to deliver them to the consignee or his
assigns. And this suit is brought on an
alleged breach of such a contract, in the
non-delivery of a crate of merchandise

CH. XI.]



a carrier *by water may land his goods at any wharf * 192
usually used for landing, and is not bound to take them

shipped on board the ship Lancaster from
Liverpool, and consigned to Raphael Cor-
dova in the usual form. The goods were
landed on the wharf of the Liverpool
packets, and whether this amounts to a
delivery to the consignee is the principal
question. It must be conceded, that, by
the general custom, the liability of ship-
owners is at an end when tlie goods are
landed at the usual wharf, and tliis seems
to be taken by tlie whole court as a posi-
tion not open to dispute, in the strongly
contested case of Hyde v. Trent & Mersey
Navigation Co. 5 T. R. 394. The usage
in Finance, although not uniform in every
particular, goes to the whole extent of the
English doctrine. At Rochelle, when the
vessel is moored at tlie wharf, the mer-
chant freighters, at their own expense
and risk, have their mercliandise depos-
ited upon the deck of the vessel. From
the time when they reach the deck, it is
the business of the hands on board to re-
ceive and place them in their proper situa-
tion. In unlading, the freighters have
them taken in like manner from the deck,
by their porters, to lower them to the
wharf, from which time they are at the
merchant's risk, without any liaDility on
the part of the master of the vessel, if
they happen to sustain any damage as
they are lowered from the vessel. At
Marseilles, it is the business of the master
to put the merchandise on the wliarf, after
which he is discharged. I Valin, 510.
And this rule of the French commercial
code is cited with approbation by the
learned conmientator, in page 636 of his
Treatise on the Marine Ordounance. As
the master, in conformity with the prevail-
ing usage in this respect, upon his arrival
deposits in the custom-house a manifest,
or general list of the cargo, with a desig-
nation of all tlie individuals to whom each
parcel of the merchandise should be re-
spectively delivered, and as there are al-
ways officers of tlie customs who attend
to the unlading, to superintend, and make
a list of all the merchandise which leaves
the vessel, for the purpose of ascertaining
whether the manifest of the cargo wliich
has been furnished is accurate and faith-
ful, and by this means the lists of these
officers constitute a proof of the landing
of the mercliandise, it is the end of the
engagement which the master has con-
tracted by the hill of lading. If, then,
disputes arise, it is only when in the bus-
tle of a hasty discharge mistakes occur on
the part of those who convey the merchan-
dise to the warehouses, by introducing

articles into one which ought to have
gone into another. The error is almost
always discovered by ascertaining what
parts of the cargo of the vessel have
been conveyed to the different warehouses.
' But if it happens,' says the commentator,
' that the error cannot be di.scovered, the
master is always discharged when it ap-
pears by the list of the officers of the royal
customs that he has caused all the mer-
chandise in his bills of lading to be placed
on the wharf.' The ordinances of Ro-
chelle and Marseilles are the text from
which, in the manner of our own commen-
tators, he proceeds to deduce the general
custom. I understand from the observa-
tions of the commentator, that the usage
is not confined to Rochelle and Marseilles ;
but that in France as in Great Britain, it
is coextensive with the limits of the king-
dom ; and in this country we are not with-
out authority to the same purpose. The
usage has been found to prevail in a sister
city, as appears from a case the name of
which is not now recollected, lately deter
mined by Judge Irving, in New York.
The same point has also been ruled by
the Supreme Court of Massachusetts, in
Chickering v. Fowler, 4 Pick. 371. A
promise by a master of a ves.sel to deliver
goods to a consignee does not require that
he should deliver them to the consignee
personally, or at any particular wharf. It
is sufficient if he leaves them at some
usual place of unlading, giving notice to
the consignee that they are so left. There
is an obvious policy in commercial nations
conforming to the usages of each other,
and it is also important that there be a
uniformity of decisions in our domestic
tribunals on mercantile questions. As
there will be great convenience in the local
usage conforming to the general custom,
it will be incumbent on those who main-
tain the contrary to make the exception
from the rule plainly appear. In unload-
ing a vessel at the port of riiiladelphia, it
is usual, as soon as articles of bulk, such
as crates, are brought upon deck, to pass
them over the side of the ship, and land
them on the wharf. The owners station
a clerk on the wharf, who takes a memo-
randum of the goods, and the day they
are taken away, and this for the informa-
tion of his employers. A manifest or re-
port of the cargo is made by the master,
and deposited at the custom-house, and
the collector, on the arrival of the vessel
within his district, puts and keeps on
board one or more insp(!ctors, whose duty
it is to examine the contents of the cargo,




[book III.

*193 to that which is nearest *or most convenient to the con-
signee, or that which he specially directs, unless the

and sujioriuteuil its delivery. And no
gt)ods from a foreign port can be un-
laden or delivered from the ship in
the United States, but in open day be-
tween the rising and setting of the sun,
except by special license ; nor at any
time without a permit from the collec-
tor, which is granted to the consignee
upon payment of duties, or securing them
to be paid. The holders of a bill of lad-
ing are presumed to be well informed of
the probable jjeriod of a vessel's arrival,
and any such arrival is a matter of notori-
ety in all maritime places. The consignee
is previously informed of the shipment ;
as it is usual for one of the bills of lading
to be kept b}^ the merchant, a second is
transmitted to the consignee by the post
or p.acket, while the third is sent by the
master of the ship, together with the
goods. With the benefit of all these safe-
guards, if the consignee uses ordinary
diligence, there is as little danger in this
country as in England and France, of
inconvenience or loss, whereas the risk
would be greatly increased if it should be
the duty of the shi])-owner, to see to the
actual receipt of the goods, and particu-
larly in the case of a general ship with
numerous consignments on board, manned
altogether by foreigners unacquainted
with the language at the port of delivery.
I have taken some pains to ascertain the
opinion and practice of merchants of the
city on this question, which is one of gen-
eral concern. My inquiries have resulted
in this, that the goods, when lauded, have
heretofore been considered at the risk of
the consignee, and that the general under-
standing has been, that tlie liability of the
ship-owner ceases upon the landing of the
goods at the usual wharf. I see no reason
to depart from a rule which has received
such repeated sanctions, from wiiich no
inconvenience has heretofore resulted,
and which it is believed in practice has
conduced to the general welfare." The
learned judge concluded with saying that
the court would wish to be understood as
giving no opinion on the law which regu-
lates the internal or coasting trade, to
which they understood the case of Ostran-
der V. Blown, 15 Johns. 39, to apply ; and
that they did not consider the present de-
cision as interfering with the principles of
that case. It has generally been lie/d, as
the learned judge intimates, that the rule
is more strict in regard to delivery in the
internal and coasting trade, than in the
foreign trade. Thus, in Wardell v. Mou-
rillyan, 2 Esp. 693, which was an action

on the case for not delivering an anchor
sent by the defendant's hoy, it appeared
in evidence that the defendant was the
owner of a hoy, which sailed from Deal to
Dice's Quay, near London Bridge ; that
the anchor had been shipped on board this
hoy, with a direction to be delivered to
Messrs. Bell, Anchram, and Buxton ; that
the defendant had delivered it at Dice's
Quay ; that the w^harfinger had paid the
hoyman the freight, and had given him a
receipt for the anchor ; and one w'itness
proved that, except in the case of flour, the
hoymen never concerned themselves about
goods after they had delivered them at the
wharf. Lord Keni/on, after making .some
observations upon the evidence, left it to
the jury to say what was the custom ; and
thev found a verdict for the plaintiff. So
in Hemphill v. Chenie, 6 W. & S. 62.
That w-as an action against the defendant,
the owner of a keel-boat on the Ohio
River, to recover the price of a box of
dry goods delivered to him at Pittsburg,
and consigned to Rowland, Smith, & Co.,
Louisville. The defendant gave evidence
to show that the box of goods in question
was carried safely to Louisville, and de-
posited on the wharf there ; and that no-
tice was given to the consignees. The
question was whether there was a suffi-
cient delivery. Grier, J., in summing up
to the jury, said : " It is contended that,
according to the custom of the port of
Louisville and the other cities on these
western rivers, the depositing of goods on
the wharf, and giving notice to the con-
signee, constitute a sufficient delivery in
law, whether the consignee actually re-
ceives the goods or not. In other words,
the care and responsihility of the carrier
cease the moment he has deposited goods
on the wharf and sent notice to the con-
signee, and this whether the consignee re-
fuses or neglects to receive them or not.
If, in such cases, the carrier may abandon
the goods on the wliarf, and the ])roperty
of the distant owners thus be left as a
subject of plunder to the first finder, it
must be admitted that the subject is one
of considerable interest to those whose
property is committed to tlie chances of
transportation on these western waters,
and has necessarily to pass through the
hands of so many different carriers and

Online LibraryTheophilus ParsonsThe law of contracts (Volume 2) → online text (page 33 of 143)