William P. McAndrew et al., Respondents, v. William Whitlock, Jr., Appellant

William P. McAndrew et al., Respondents, v. William Whitlock, Jr., Appellant. A common carrier by water, of goods consigned to one not the owner, is not bound to deliver to the consignee in person, or at his warehouse. He may land them at a wharf at the port of destination, but before unlading he must give the consignee due notice of their arrival and unlading, and yield him a reasonable time after notice to take charge of and secure them; and if the consignee does not appear to claim the goods, or does not receive them, it is the duty of the carrier to take care of them for the owner. An officer of the custom-house, on board a ship in the discharge of his official duly to care for the lawful unloading of the cargo, is not, as such, authorized to receive the goods; and a discharge, with his knowledge and assent, is not such a delivery as relieves the carrier from liability. Seasonable notice and reasonable time is such as gives the consignee time enough, under all. proper and ordinary circumstances, and proceeding in the ordinary mode of those engaged in the same business, to provide for the care and removal of the goods. And where the carrier is apprised of the distance the goods are to be carted after delivery, such distance is proper to be considered in determining the question as to what is reasonable. There is no difference in the obligation as to delivery between a carrier by sea and a carrier by inland water. Plaintiffs shipped, at Liverpool, by defendant’s vessel, 381 cases of licorice (of which plaintiffs were owners), consigned to J. 0. McA., at Hew York. The vessel arrived at Hew York August 25th, 1860, and the consignee was notified. He paid the duties on 181 cases and entered the remainder for warehousing, and received directions to place them in certain designated United States bonded warehouses, and delivered a permit for the discharge of the goods on board the vessel. Defendant’s agent was notified that the goods were perishable and must be discharged on a fine day. It was agreed between the agents of the parties , that the goods . would be discharged September 20th, if the day was fine. On that day it was raining until 9 a. m., and then cleared up. Bain fell again about 2.30 p. m. ; and from 4.30 p. m. it fell during the .rest of the day and night. Defendant’s agent began at 9 a. m. to discharge the goods and continued until noon, when the consignee was notified. At that time nearly all the cases were unloaded and placed upon the wharf; all were unloaded before 2 p. m. They had to be weighed by a United States officer before removal He reached1 the place at 2.30 p. m. The consignee used great diligence, but was unable, during that day, to secure the property, and a portion was injured, Held, that the day selected was not fine, and the consignee, therefore, had no notice that the goods were then to be landed, and that defendant landed the goods without reasonable notice, upon an unsuitable day, and was chargeable with a breach of his obligation and duty as a common carrier. (Submitted December 24, 1872; decided January 21, 1873.) Ely v. W H. St. Go., 53 Barb., 207, held as overruled; Hyde v. Trent. Wav. Go., 5 Term. R., 389, limited; and S. F. M. Go. v. The Tánger, 1 Clif., 396; and The Grafton, Olcott Adm. R., 43; S. C.,1 Blatch., 173, distinguished. Appeal from judgment of the General Term of the Superior Court of the city of Hew York, affirming a judgment in favor of plaintiffs, entered upon the report of a referee. This action was brought against defendant, as a common carrier by water, for damages alleged to have been sustained by reason of the improper delivery by him of goods brought by his ship, under the usual bill of lading, from Liverpool to Hew York. On the 28th day of June, 1860, plaintiffs shipped on board the ship belonging to the defendant, called the “ Carolus Magnus ” (the said ship then lying in the port of Liverpool and bound for Hew York), 381 cases of licorice in good order, the property of the plaintiffs. The said licorice was consigned to James C. McAndrew, the agent of the plaintiffs, in the city of Hew York, and the bill of lading, duly indorsed in blank, was transmitted to the said consignee, who was ready, on the arrival of the said ship at the port of Hew York, to receive the goods, and pay therefor the freight and primage. The ship having the licorice on board arrived at the port of Hew York on the 25th day of August, 1860, and soon thereafter, and before the second day of September, the consignee had notice of such arrival. He paid the duties upon 181 cases on the 1st day of September, 1860, and entered the remaining 200 cases for warehousing, and received permission to cart the same in carts provided by himself, and a direction to place them in the Hnited States bonded warehouses Hos. 6, 8 and 10 Bridge street, and duly delivered on board the ship a permit from the Collector of the Port of blew York for the discharge of the goods from the vessel. On the 2d day of September, 1860, and on various days between the said second day of September and the. nineteenth of the same month, the consignee, on the behalf of the plaintiffs, applied to the agents of the defendant on board the ship to learn when the defendant or his agents would be in readiness to land the licorice, but received no definite information. The said licorice was near the bottom of the ship. Other goods were on board which had to be first discharged. When the custom-house permit was delivered, the agent of the defendant was notified by the consignee that the licorice was perishable, and was requested not to put it out in rainy weather for the reason that if he did the plaintiffs could not take care of it, it had to be carted so far, and such agent pf the defendant promised to discharge it in fine weather. . On the nineteenth day of September the agent of the defendant informed the plaintiffs’ agent that if the weather was fine on the twentieth he would discharge the licorice on that day. On the. twentieth, in the morning, it rained and com tinned to rain until nine o’clock in the forenoon, with thunder and lightning at four, fifty minutes past seven, and eight o’clock. At ten o’clock it was clear, and continued clear for one hour, when it became cloudy (light clouds for two hours and denser clouds thereafter), and so continued until half-past two o’clock, p. m., when it rained. At three p. m. it was still cloudy, but without rain. At twenty minutes past four o’clock p. m. the rain again commenced, with thunder and lightning, and continued with increasing violence during the rest of the day and ensuing night. Without further notice to the plaintiffs, or their agent and consignee, the defendant, at or about nine o’clock in the morning of that day, commenced landing the licorice in good order upon the wharf, and continued landing the same until about noon, at which time verbal information from the defendant that the landing was in progress was given to the clerk of the consignee. At that time about forty cases remained on the ship to be landed, all of which was landed in good order between one and two o’clock of that day on the wharf. By the law of the United States the licorice could not be removed from the landing place until it was weighed by a weigher. Such weigher arrived at the landing place and began the weighing at about half-past two o’clock p. m., and continued to weigh the eases during the residue of the afternoon, and finished such weighing at five o’clock p. m, Immediately upon the receipt of information by the said clerk of the consignee that the landing of the said licorice had begun as above stated, the consignee employed a large number of carts and used extraordinary diligence to remove the licorice to the United States bonded warehouses, but, notwithstanding, the same was wet and injured by the rain and depreciated in value. The United States warehouses .closed at six o’clock p. ai., and 170 cases of the said licorice remained on the wharf during the night, neither party protecting the same from injury. Defendant’s counsel requested the referee to find the following additional facts: 1. That at nine o’clock on the 20th of September, I860, the master of the vessel consulted the barometer and found it to be rising. 2. That at twelve m. the master again consulted the barometer and found it to be still rising. 3. That the rain at .thirty-seven minutes past, two o’clock p. h., merely a slight shower, lasted about five minutes, and doing no damage to the licorice. 4. That the landing of the licorice was made under the superintendence of a United States inspector stationed on the ship by the custom-house authorities. 5. That the licorice, as it was landed, was placed by itself on the wharf. 6. That no steps were taken by the consignee’s agent to protect or provide covering for the licorice from the rain, either on the wharf or during the transit to the warehouses. The referee refused to find otherwise than as he had already-found as stated above, and to such refusal defendant’s counsel duly excepted. The referee also found that the defendant was guilty of negligence and breach of his obligation and duty as the carrier of the goods in landing the licorice on the dock, with knowledge of its perishable character, on a day unsuitable to the landing and transportation of such goods, without reasonable notice, to the consignee sufficient to enable him to cause the same to be weighed, transported and protected against injury by the weather. That no negligence is imputable to the plaintiffs or the said consignee in respect thereto, and that defendant was liable for the damage sustained, and ordered judgment in favor of plaintiff therefor, to which findings the defendant’s counsel duly excepted. Judgment was entered accordingly. Wm. H. Scott for the appellant. The delivery of the goods at the wharf terminated defendant’s liability. (Abb. on Shipping, 378; 3 Kent’s Com., 215, 9th ed., 291.) 17 o tice of the fact of the delivery of goods on the wharf by ships from foreign ports is not necessary, in addition to the notice of time and place of delivery. (Hyde v. Trent Nav. Co., 5 Term, 389, 394; Cope v. Cordóva, 1 Rawle, 203; Story on Bail., §§ 534, 545 ; Angell on Car., § 310, et seq.; 1 Parsons’ Mar. Law, 152; Richardson v. Goddard, 23 How. [U. S.], 28; The Grafton, Olcott, 43; Gibson v. Culver, 17 Wend., 311; Chickering v. Fowler, 4 Pick., 371; Kohn v. Packard, 3 La. [Millér], 224; Ely v. N. H. Stbt. Co., 53 Barb., 207; Redmond v. L. & P. S. S. Co., 46 N. Y., 578; Harman v. Mant, 4 Camp, 161; Gould v. Chapin, 10 Barb., 612; Norway Plains Co. v. B. and M. R. R., 1 Gray, 271; Fisk v. Newton, 1 Den., 45; Thomas v. B. and P. R. R. Co., 10 Metc., 472; Garside v. T. Nav., 4 Term, 581; Chit. and Temp. on Car. [ed. 1857], 154; Golden v. Manning, 3 Wils., 429 ; S. C., 2 W. Black., 916; Add. on Cont. [2 Am. ed.], 480; Gatliffe v. Bourne, 4 Bing. [N. C.], 314; Bourne v. Gatliffe, 11 Cl. & Fin., 45; Price v. Powell, 3 Comst., 326.) The delivery of the goods to the custom-house officers and plaintiff’s carman, on the wharf, relieved defendant from further liability for the goods. (The Grafton, Olcott, 43; 3 Kent, 215 ; Hemphill v. Chenie, 6 Watts & Serg., 62.) Aug. F. Smith for the respondents. The carrier must . deliver to the consignee personally. (Fisher v. Newton, 1 Denio, 45, 47.) The rule as to carriers by sea and by inland waters is the same, and is- stated in the following authorities. (Story on Bail., § 545; Price v. Powell, 3 Coms., 322; Ostrander v. Brown, 15 J. R., 39, 42; Fisk v. Newton, 1 Den., 45, 47; Ang. on Car., § 310; 2 Kent, 605 [margin], and notes; Barclay v. Clyde, 2 E.D. Smith, 95 ; Chickering v. Fowler, 4 Pick., 371.) Under no circumstances can the carrier place the goods upon- the. wharf and abandon them. (Redmond v. L. and S. Go., 46 N. Y., 578, 583; Ostrander v. Brown, 15 J. R., 39, 42; Fisk v. Newton, 1 Den., 45,47; Story on Bail., § 545; 2 Kent, 605 [margin].) Especially is the above true where the consignee is not owner, but a mere agent. (Goold v. Chapin, 20 N. Y., 263; Ostrander v. Brown, 15 J. R., 39, 42; 2 Kent, 605 [margin]; Chickering v. Fowler, 4 Pick., 371.) [MAJORITY — Folg-er, J.] Folg-er, J. The defendant was a: common carrier by vessel, on sea, of goods consigned to one not the owner thereof. As such he was. not bound to deliver the goods of the plaintiffs to the consignee thereof in person, nor at his warehouse. (Richardson v. Goddard, 23 How. U. S., 28.) He might land them at a wharf at the port of destination. (Chickering v. Fowler, 4 Pick., 371.) But before unlading there, he must give the consignee due notice of their arrival and unlading, and yield him a reasonable time, after notice given, to take charge of and secure them. (Ostrander v. Brown, 5 Johns., 39; 23 How., supra.) And if the consignee did not appear to- claim the goods, or did not receive them, or if he was unable or refused to receive them, the carrier was not at liberty to leave them on the wharf, but it was his duty to take care of them for the owners. (Id.; Redmond v. Liv., N. Y. & Phil. St. Co., 46 N. Y., 578.) These rules and others noticed herein, applied to the facts of this case, determine it adversely to the defendant. There is no question here but that there was due notice to the consignee of the arrival of the goods in port; nor but that there was due notice of the wharf chosen for the unlading of them; nor is there any question but that all the packages came into the actual possession of 'the consignee. The questions are, was the notice of the time of the unlading such as was reasonable; and was the landing of these goods made in a proper state of the weather; and did the carrier perform his whole duty in the care he took of them after they were landed ? The question as to notice of the day of unlading is to be determined by a consideration of the facts which occurred on the nineteenth and twentieth days of September. For though the consignee had been notified of the arrival of the goods in port for several days before either of those dates, yet the precise day of unlading had been deferred by the carrier himself until after the nineteenth. He had been requested to land them on that day but declined. He on that day selected the twentieth as the day for discharging them, if it should be a fine day, and then notified the consignee that the goods would be unladen on the twentieth if it should be a fine day. There was much importance attached by the consignee to the character of the day, whether fine or not. And very properly so. -The goods were perishable, and liable to be damaged by rain falling upon the packages. Of this the carrier had been informed, and'had consented to adapt his action to this circumstance. So that it was an important part of this notice for the twentieth, that it was conditional upon that day being fine. And by the force of what had taken place between the parties, each undertook to judge for himself in that respect. And for a mistake therein, the one making it was alone liable. And the result was this: If in fact the day was fine, then the consignee had notice, and the unlading might go on; but if in fact the day was not fine, then though the carrier might if he chose unload, he did so at his risk of any damage to the goods. We are brought by the findings of the learned referee, and by the evidence in the case, to the conclusion that the day was not such as-to put 'the consignee in the position of having had notice that the unlading was to take place on it; that it was not fine. It was raining until nine o’clock in the forenoon, and there had thrice been thunder and lightning, once as late as eight o’clock in the forenoon. Eain fell again at about half-past two in the afternoon, and from half-past four in the afternoon it fell during the rest of the day and night. But without further or other notice to the consignee, the carrier began at nine o’clock to discharge the goods, and so continued until noon when the consignee was informed thereof. At that time, however, nearly all the packages had been placed upon' the wharf, and they were all placed there before two o’clock in the afternoon. The latter notice to the consignee was not a reasonable notice. For he was not at liberty to remove the goods before they had been weighed by a United States officer, to be sent for that purpose from the custom-house. This officer did not reach the place until half-past two o’clock in the afternoon. And though the consignee used extraordinary diligence and employed a large number of carts, he was unable during that day to secure the property from harm. The conclusion of law of the learned referee is well founded, that the defendant landed the goods without reasonable notice to the consignee, sufficient to enable him to cause the same to be weighed, transported and protected against injury by the weather. And as the carrier had knowledge of the perishable character of the goods, and that the consignee had far to cart them, and is, under the circumstances chargeable with the state of the weather on the day of unlading, the conclusion of law of the learned referee is well founded, that the defendant landed the property on the dock with a knowledge of its perishable character on a day unsuitable to the landing and transportation of such goods, hior is there any finding nor any evidence that the defendant, after the property was discharged from, out of the ship, did .anything to keep it from harm, or that he did anything to aid. the consignee to that end, other than to separate it on the wharf from the property of others. If no notice had been given of the arrival of the vessel, and of the readiness to unload, then the mere unlading the goods on a suitable wharf, even if the time had been suitable, would not have been equivalent to an actual delivery. (Gatliff v. Bourne, 4 Bing., N. C., 314; S. C. House of Lords, 11 Cl. & Fin., 45 ; and 3 Man. & Gr., 643.) We have already stated, that though the consignee had notice of the arrival of. the vessel, yet all which took place between him and the carrier, as to notice of the actual unlading, brought the matter to the same point as if he had had no notice of arrival. For he was not prepared to avail himself of the actual discharge of the goods on the forenoon of the twentieth, because he knew not that they were then to be unladen. Hence he and the carrier fall within the rule of the case just cited. And if, after the discharge of goods has been had, notice thereof be given to the consignee, then he is entitled to a reasonable time thereafter .in which to go or send to the wharf to receive the goods and take, them away. (Salmon Falls Man. Co. v. The Tangier, 1 Clifford, 396.) When then, at noon of the twentieth, notice was given to the consignee that the discharge of the goods had commenced, he was still entitled to a reasonable time, which as we have seen he did not have. And as, if the consignee not being the owner be unwilling or unable- to take charge of the goods, the carrier still remains charged with the duty of saving them from harm, though they be put out of the ship on to a proper wharf (46 N. Y., supra) ; so though the consignee be willing and doing his best endeavor to take charge of and remove the property, if he have not time so to do by-reason of insufficient notice, the carrier is not relieved from his obligation to care for the goods and save them from damage. And, sustained by these established principles, the conclusion of law of the learned referee is well founded, that the defendant was guilty of negligence and of a breach of his obligation and duty as carrier of the goods. It is urged, however, an officer from the custom-house being on board the ship, in the discharge of his official duty to care for the lawful unlading of the cargo, that he was a person authorized to receive the goods, and that a discharge with his knowledge and assent was such a delivery as relieved the defendant from his liability as a carrier. It was held otherwise by us, after due consideration, in Redmond v. Liv., N. Y. & Phil. St. Co. (supra), and we adhere to the decision there made. It is also urged, that a judgment against the defendant holds him liable for the distance of the IT. S. bonded warehouses from the wharf at which his vessel lay. But this certainly enters into the question of reasonable notice and of reasonable time; inasmuch especially as the defendant was apprised of the distance for which the goods were to be carted after delivery should be made to the consignee. For whether notice is reasonable or not, depends upon whether or not it gives to the consignee time enough, under all proper and ordinary circumstances, to provide for the care and removal of the goods. To be sure, the consignee cannot choose an unusual, out of the way and far distant place of storage, and insist that the notice shall be given and the time shall be allowed for transportation thither. Ho more so, than that the carrier can select a wharf as much inconvenient 'for the consignee and hold him to usual dispatch. But where the consignee proceeds in the ordinary mode of those engaged in the same business, he is entitled to time enough to take charge of the property, and remove it in due course to a safe shelter, before the carrier can desert it unprotected upon the place of landing. There is nothing in the findings nor in the evidence showing that the action of the consignee was unusual in the use of the warehouses chosen by him or allotted to him. It is claimed that the referee erred in declining to make certain findings of fact as requested by the defendant. 1st. It is true that there was testimony that the barometer was consulted by the defendant’s agent, and that it was rising when he began to unlade and while he was unlading. This did not countervail the other facts which appeared. The movements of the barometer could not disprove the falls of rain. They were but indications; and if the defendant relied upon them he relied upon them for himself, and not for the plaintiffs. 2d. The referee found as to the rain at thirty-seven minutes past two o’clock p. m. in exact accordance with the evidence agreed upon by both parties. 3d. It was immaterial that the landing of the goods was under the superintendence of a United States custom-house inspector. 4th. And so, that the licorice, when landed, was placed separate from other goods. The liability of the defendant does not depend upon the contrary. 5th. The referee did find that neither - party protected the cases, 170 in number, which remained on the wharf during the night. He found, also, that the consignee used extraordinary diligence to remove the property. But it was .immaterial that he did not provide covering for it while on the wharf or during the transit. Had he neglected to do so, and that have been found by the referee, it would not have relieved the defendant from his liability. That was not ended until he had made complete delivery; and that was not effected without an unlading on a notice of time and place, which gave reasonable time for safe removal. We do not think that the referee erred in declining so to find, so as to vitiate his judgment. The questions put to the witnesses by the defendant, as to the alleged usage at the port of Hew York, were properly disallowed. They were improper in form and extent. They called for a conclusion of law, and not matter of fact. The referee assented to the putting of a question as to the fact of a usage. The answers to the questions put, if responsive, would have stated not only the usage, but its legal effect upon the relations of the parties. The learned counsel for the defendant has cited many cases, some of which he much relies upon as closely analogous to and decisive of this. We do not so read them. Cope v. Cordova (1 Rawle, 203) is fully commented upon in 46 N. Y. (supra), and shown to be a case resting entirely upon its own facts, and as establishing no general principle ; and the same is true of Ely v. N. H. St. Co. (53 Barb., 207); which case, moreóver, was substantially overruled in Russell Manufacturing Co. v. N. H. St. Co. (50 N. Y., 121). Arid it is to be observed, further, that, in Cope v. Cordova, the case of perishable articles, which may be landed to the great detriment of the consignee at improper times, is said to be beside the- question- there considered; and that such special case, when it should' arise, would be decided on its own circumstances. The case of The Tangier (1 Clifford, supra), we have cited to show that -where no notice is given until cargo is discharged the carrier is not relieved until a reasonable time has been accorded to the consignee to take charge of it. And that case goes upon the principle, which the facts of it sustained, that the carrier acted pursuant to a full and reasonable notice to the consignee, and did unlade at a suitable place and time in compliance with that notice; and it holds that the carrier must give such reasonable notice of those facts to the con- . signee as will enable him, in the usual course of business, to receive and take away the goods. The case of The Grafton (Olcott Adm’y Reps., 43 [S. C.], 1 Blatchf., 173) is much relied upon by the defendant. But this case starts with the annunciation of the rules we have laid down. It assumes (p. 46) that due notice was given to the consignees by the ship of the time and place of unlading; for without reasonable notice (the decision asserts) it is clear the ship would not be discharged of her responsibility by placing the goods on the wharf. A carrier by water (it continues) cannot leave or abandon, in an unprotected state, goods under his charge, even though there be an inability or refusal of the consignee to receive them. The learned judge seems to have put his decision very much upon the usage of the port. He says: “ I think that the result of the cases is that, in a well settled course of trade, as it is in this fort in relation to coasting vessels, a delivery of a cargo on the dock here, with notice to the owners of the time and place of unlading, places the goods at their risk, and discharges the ship from its liability as a common carrier,” But even then, he adds, “ although, in the case of a naked consignment, the ship might be under the further obligation to secure the property after it was unladen, if no consignee appeared or he refused to accept the goods.” And he says that he does not discuss the point debated at the hearing, as to the liability of the ship if she discharges perishable goods in hazardous or improper weather, against the consent of the owners; and notices the intimation in Cope v. Cordova (1 Rawle, supra), that such a circumstance might take the case out of the ordinary rules, and fasten the loss on the vessel. The case does not lay down a general rule differing from those which we have here adopted. And if there is a difference in the application of the law, it is that the state of tacts is different. The defendant strenuously contends that, there is a difference in the obligation as to delivery between a carrier by sea and a carrier by inland water; and that less is exacted of the former. He cites cases such as Hyde v. Trent. Nav. Co. (5 Term R., 389), where Bulles, J., says“ A ship, trading from one port to another, has not the means of carrying goods on land; and, therefore, according to the established course of trade, a delivery on, the usual wharf is such a delivery as Will discharge the carrier.” But this language must be understood in the courts of this country with the qualification that due and reasonable notice thereof is given to the consignee. (Story on Bailm., § 545; 2 Kent’s Com., p. 605, and note c.) With such qualification, the language quoted will apply to carriers by sea or on inland waters; and the obligation is the same in each case. It needs not that we go over all the cases cited. We are sure that we assert no rule here that is not in accordance with the principles of the decisions made upon a state of facts, the same or like as that here presented. The judgment appealed from must be affirmed, with costs to the respondent. All concur. Judgment affirmed.