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 (x) 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. (vv) But if after such efforts they cannot so deliver them, they are liable only as warehousemen, for negligence. (vw) * Carriers by water cannot usually deliver goods at the residence of their consignees without land carriage, and the greatest * amount of goods carried by water is consigned to persons 191 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 landed. Hence a usage prevails very generally to deliver such goods by landing them on a wharf, and giving immediate notice to the consignees. (w) And it is held, that (v) See the opinion of Grier, J., in Hemphill v. Chenie, 6 W. & S. 62, cited in note (w). (vv) Witbeck v. Holland, 55 Barb. 443; 38 Howard, Pr. 273, affirmed in 45 N. Y. 13; Am. Union Ex. Co. v. Wolf, 79 Ill. 430; Packard v. Earle, 113 Mass. 280; Union Ex. Co. v. Ohlemann, 92 Penn. St. 323; Bennett v. Northern Pac. Express Co., 12 Ore. 49. (vi) Adams Express Co. v. Darnell, 31 Ind. 20. The obligation of railroad companies to deliver goods to the consignee's warehouse is fully considered, and in especial reference to grain elevators, in Vincent v. Chicago, &c. R. R. Co., 49 Ill. 33. See People v. Chicago, &c. R: Co., 55 Ill. 95; Hoyt v. Chicago, &c. R. Co., 93 Ill. 601. (w) Dixon v. Dunham, 14 Ill. 324; Crawford v. Clark, 15 Ill. 561; Hyde v. Trent & Mersey Nav. Co., 5 T. R. 389. In the last 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 B, from a warehouse there, where they usually unloaded, but which did not belong to them, they must answer for 5 Dutch. 393; Winslow v. Vermont, &c. R. R. Co., 42 Vt. 700; Lemke v. Chicago, &c. R. R. Co., 39 Wis. 449. In other States, the 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 v. Sacramento Valley R. R. Co., 23 Cal. 268; Southwestern R. R. Co. v. Felder, 46 Ga. 433; Rothschild v. Michigan Central R. R. Co., 69 Ill. 164; Cincinnati, &c. R. R. Co. v. McCool, 26 Ind. 140 (see, however, Pittsburg, &c. Ry. Co. v. Nash, 43 Ind. 423); State v. Creeden, 78 Iowa, 556; Rice v. Hart, 118 Mass. 201; Barker v. Brown, 138 Mass. 340; Gashweiler v. Wabash, &c. Ry. Co., 83 Mo. 112; Chalk v. Charlotte, &c. R. R. Co., 85 N. C. 423 ; Shenk v. Philadelphia, &c. Co. 60 Penn. St. 109 (see also Nat. S. S. Co. v. Smart, 107 Penn. St. 492); Spears v. Spartanburg, &c. R. R. Co., 11 S. C. 158. In Tennessee by statute notice must be given to the consignee, but 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 Ill. 285, it was held, that if a railroad receives goods liable to duty which must be delivered by law at a bonded warehouse, it is liable as a carrier until they are so delivered. W. (x) See supra, p. *163, notes 1 and (x). * 192 a carrier by water may land his goods at any wharf usually used for landing, and is not bound to take them the goods if destroyed in the warehouse by an accidental fire, though they 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 land. 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 land is bound to make a personal delivery, was not decided, though all the judges expressed their opinion upon it; that of Lord Kenyon being against such liability, and that of all the other judges being in 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. By the custom of the River Thames, the master of a vessel is bound to guard goods loaded into a lighter, 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. Wintringham, 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 held that the master was not obliged to do this. Robinson v. Turpin, cited 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 consignee to send down persons, at his own expense, to pack and take care of the goods; and therefore, where a consignee had omitted to do so, and goods were damaged by being sent loose to the shore, it was held that he had no right to call upon the master of the ship for compensation. 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 v. Cordova, 1 Rawle, 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 shipped on board the ship Lancaster from Liverpool, and consigned to Raphael Cordova 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 shipowners is at an end when the goods are landed at the usual wharf, and this seems to be taken by the whole court as a position not open to dispute, in the strongly contested case of Hyde v. Trent & Mersey Navigation Co., 5 T. R. 394. The usage in France, although not uniform in every particular, goes to the whole extent of the English doctrine. At Rochelle, when the vessel is moored at the wharf, the merchant freighters, at their own expense and risk, have their merchandise deposited upon the deck of the vessel. From the time when they reach the deck, it is the business of the hands on board to receive and place them in their proper situation. 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 liability on the part of the master of the vessel, if they happen to sustain any damage as they are lowered from the vessel. Marseilles, it is the business of the master to put the merchandise on the wharf, after which he is discharged. 1 Valin, 510. And this rule of the French commercial code is cited with approbation by the learned commentator, in page 636 of his Treatise on the Marine Ordonnance. As the master, in conformity with the prevailing 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 the individuals to whom each parcel of the merchandise should be respectively delivered, and as there are always officers of the 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 which has been furnished is accurate and faithful, and by this means the lists of these officers constitute a proof of the landing of the merchandise, it is the end of the engagement which the master has contracted by the bill of lading. If, then, disputes arise, it is only when in the bustle of a hasty discharge mistakes occur on At to that which is nearest * or most convenient to the consignee, or that which he specially directs, unless the the part of those who convey the merchandise 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 discovered, the master is always discharged when it appears by the list of the officers of the royal customs that he has caused all the merchandise in his bills of lading to be placed on the wharf.' The ordinances of Rochelle and Marseilles are the text from which, in the manner of our own commentators, he proceeds to deduce the general custom. I understand from the observations 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 kingdom; and in this country we are not without 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 determined 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 vessel 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 maintain the contrary to make the exception from the rule plainly appear. In unloading a vessel at the port of Philadelphia, 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 memorandum of the goods, and the day they are taken away, and this for the information of his employers. A manifest or report of the cargo is made by the master, and deposited at the custom-house, and the collector, on the arrival of the vessel * 193 within his district, puts and keeps on board one or more inspectors, whose duty it is to examine the contents of the cargo, and superintend its delivery. And no goods from a foreign port can be unladen or delivered from the ship in the United States, but in open day between the rising and setting of the sun, except by special license; nor at any time without a permit from the collector, which is granted to the consignee upon payment of duties, or securing them to be paid. The holders of a bill of lading are presumed to be well informed of the probable period of a vessel's arrival, and any such arrival is a matter of notoriety 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 by the merchant, a second is transmitted to the consiguee by the post or packet, while the third is sent by the master of the ship, together with the goods. With the benefit of all these safeguards, 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 ship-owner, to see to the actual receipt of the goods, and particularly 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 general concern. My inquiries have resulted in this, that the goods, when landed, have heretofore been considered at the risk of the consignee, and that the general understanding has been, that the 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 which 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 regulates the internal or coasting trade, to which they understood the case of Ostrander v. Brown, 15 Johns. 39, to apply; and that they did not consider the present decision as interfering with the principles of that case. It has generally been held, as the learned judge intimates, that the rule * 194 carrier has previously agreed to obey such * direction. (x) But in all such cases of landing, and, indeed, in all cases of delivery of goods by a carrier, in any other way than is more strict in regard to delivery in the internal and coasting trade, than in the foreign trade. Thus, in Wardell v. Mourillyan, 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 wharfinger had paid the hoyman the freight, and had given him a receipt for the anchor; and one witness proved that, except in the case of flour, the hoymen never concerned themselves about goods after they had delivered them at the wharf. Lord Kenyon, after making some observations upon the evidence, left it to the jury to say what was the custom; and they found a verdict for the plaintiff. So in Hemphill v. Chenie, 6 W. & S. 62. That was 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 deposited on the wharf there; and that notice was given to the consignees. The question was whether there was a sufficient 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 consignee, constitute a sufficient delivery in law, whether the consignee actually receives the goods or not. In other words, the care and responsibility of the carrier cease the moment he has deposited goods on the wharf and sent notice to the consignee, and this whether the consignee refuses or neglects to receive them or not. If, in such cases, the carrier may abandon the goods on the wharf, and the property 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 the chances of transportation on these western waters, and has necessarily to pass through the hands of so many different carriers and consignees. It must be apparent to every one, that however much steamboat men and other carriers on our rivers may affect the diction and phraseology of maritime cities in their bills of lading, insurances, &c., yet that a hasty or indiscriminate application of our commercial and maritime code of laws and customs might not be convenient or judicious. Goods may be shipped' on board steamboats and canalboats from the 'port' of Pittsburg to the 'port' of Louisville; and yet it might happen that the rules of commercial law, which regulate trade on the ocean, and freight shipped from Liverpool to Philadelphia, might be very inconvenient of application to our western waters. Hence in Cope v. Cordova, 1 Rawle, 203, which decides that the liability of the shipowner ceases when the goods are landed at the usual wharf,' many good reasons are given why such a rule exists in the trade between two maritime cities, which cannot apply to this shifting transportation from point to point on our western waters; and the learned judge who delivers the opinion of the Supreme Court in that case is careful to observe, that they do not intend by that decision to interfere with the law that regulates the internal or coasting trade, or at all to dissent from the case of Ostrander v. Brown, 15 Johns. 39." The learned judge then proceeded to comment on the unreasonableness of holding such a delivery to be sufficient, and the jury under his instructions found a verdict for the plaintiff. The case was afterwards carried up to the Supreme Court, and that court held the instruction to be correct. To the same effect is Ostrander v. Brown, 15 Johns. 39, though the distinction between the internal and coasting trade and foreign trade is not expressly taken. In that case, goods were put on board of the defendant's vessel to be carried to Albany, and, on arriving there, were by the defendant's direction put on the wharf. It was held, that this was not a delivery to the consignee, and that evidence of a usage to deliver goods in this manner was immaterial, but that the defendant was liable in an action of trover for such part of the goods as was not actually delivered to the consignee. (x) Chickering v. Fowler, 4 Pick. 371. * putting them into the actual possession of the consignee, or into his house or store, it is absolutely essential that notice should be given to the consignee, so that he may forthwith take possession of the goods. (y) Nor does a mere casual knowledge on the part of the consignee excuse the want of 195 notice. (2) Nor can the goods be put on the wharf on a day that is not by law, usage, or custom, a day of business. (a) Nor may the master heap them confusedly with other goods upon a wharf; but he must, to a reasonable extent, separate and discriminate them. (b) We have seen, that leaving goods in the office, or store, or even in the carriage of the carrier, is no delivery to him, to make him responsible for them as carrier, unless he has notice of such delivery, that he may forthwith take charge of the goods and provide for their safety. In the same way, no delivery by him discharges him from responsibility, unless the party entitled (y) This was very authoritatively declared by Mr. Justice Porter, in Kohn v. Packard, 3 La. 224. "The contract of affreightment," said he, "does not impose on the owner of the vessel the obligation to deliver merchandise shipped on board of her to the consignee, at his residence. It is a contract to carry from port to port, and the owners of a vessel fulfil the duties imposed on them, by delivering the merchandise at the usual place of discharge. The authorities cited on argument, as well as the reason of the thing, clearly establish this rule. But though the contract does not require the owners of the vessel to deliver the goods at any other place in the port but that where ships generally discharge their cargoes, it is not to be concluded that they have a right to land the goods at these places and release themselves, by doing so, from all further care and responsibility, without giving notice to the person who is to receive them. The authorities on this subject are contradictory. Some of those cited support fully the position that a landing on the wharf is equivalent to a delivery. We should have reviewed them, had not the counsel who argued the case carefully, on the part of the defendant, very properly refrained from pressing the rule to that extent. We have the high authority of Chancellor Kent for saying, that the better opinion is, there must be a delivery on the wharf to some person authorized to receive the goods, or some act which is equivalent to, or a substitute for it. The contrary doctrine appears to us too repugnant to reason and justice to be sanctioned by any one who will follow it out to the consequences to which it inevi tably leads. . . . Contracts impose on parties not merely the obligations expressed in them, but everything which by law, equity, and custom, is considered as incidental to the particular contract, or necessary to carry it into effect. La. Code, 1987. Delivery is not merely an incident to the contract of affreightment, it is essential to its discharge, and as there cannot be a delivery without the act of two parties, it is indispensable that the freighter should be apprised when and where the ship-owner, or his agent, is ready to hand over the goods." See also Northern v. Williams, 6 La. An. 578; House v. The Schooner Lexington, 2 N. Y. Leg. Obs. 4; Chickering v. Fowler, 4 Pick. 371; Price v. Powell, 3 Comst. 322; Tarbell v. Royal Exchange Shipping Co. 110 N. Y. 170; Michigan Central Railroad Co. v. Ward, 2 Mich. 538. But see Mich. C. R. R. Co. v. Hale, 6 Mich. 243. As to what will constitute a sufficient notice, see Kohn v. Packard, 3 La. 224. (z) The Ship Middlesex, Cir. Ct. U. S. Mass. May T. 1857, 21 Law Rep. 14. (a) S. F. M. Co. v. Bark Tangier, Cir. Ct. U. S. Mass. May T. 1857, 21 Law Rep. 6. In this case it was held, that Fast-day was not, in Massachusetts, a day of business, within this rule. But in the case of Richardson v. Goddard, 23 How. 28, the foregoing decision of the Circuit Court was reversed, and the unlading on Fast-day held to be a good delivery, on the ground that there was no law, or gen eral usage, or special custom, forbidding the unlading of a vessel on such a day. 14. (b) The Ship Middlesex, 21 Law Rep. |